Petition for Writ of Certiorari — Maldonado v. Iwasaki (No. 09-359)

Supreme Court brief2009

Ask Donna

What actually matters in this document.

Text

ri *¥ Find Sy

Supreme Co

pre . put, U.S.

No. ___Q9 = 359 SEP 2.2 2009

OFFICE OF THE CLERK

Sn The

Supreme Court of the United States

NANO MALDONADO, AN INDIVIDUAL,

Petitioner,

RANDELL [WASAKi, IN HIS CAPACITY AS

DIRECTOR OF THE CALIFORNIA

DEPARTMENT OF TRANSPORTATION,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

DENNIS SCOTT ZELL

FOGARTY & ZELL, LLP

198 Taylor Boulevard

Millbrae, CA 94010

(650) 652-5601

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

As amended in 2008, the California Outdoor

Advertising Act prohibits offsite commercial

advertising, but exempts onsite commercial

advertising, as well as “noncommercial, protected

speech contained within any advertising display.”

Petitioner Maldonado owns a billboard that was

erected with a valid building permit in 1956, and

the billboard is located on private property in a

regulated zone. Is the legal distinction between

commercial and noncommercial speech so vague,

overbroad, and arbitrary that it violates Due

Process and abridges the Freedom of Speech and

Press?

A precedent of this Court held that a zoning law

which banned newsracks displaying commercial

publications, but exempted newsracks displaying

noncommercial publications, was overbroad as a

commercial speech regulation under prong four of

the Central Hudson test, and could not otherwise

qualify as a “time, place, and manner” regulation

(subject to a different intermediate scrutiny test)

because the commercial-noncommercial distinc-

tion was content-based. Is that precedent binding

as to billboards? What legal standards should be

used to evaluate injunctions and equal protection

claims involving a commercial-noncommercial

distinction?

QUESTIONS PRESENTED -—- Continued

Under prong three of the Central Hudson

balancing test, the government generally must

submit substantial evidence to prove that its

censorship of truthful, non-misleading com-

mercial speech “materially advances” a_ sub-

stantial government interest. In the context of

billboards, does an offsite commercial speech

restriction materially advance aesthetic and

traffic safety interests as a matter of law, or must

the government submit substantial evidence to

prove the law is effective, both in the aggregate

and as-applied to the particular billboard?

PARTIES

Petitioner is Nano Maldonado, an individual.

Respondent is the Director of the California

Department of Transportation, Randell Iwasaki, sued

in his official capacity. Mr. Iwasaki succeeded former

Director, Will Kempton on August 1, 2009 and has

been named in the caption pursuant to Rule 35(3).

It should also be noted that Jeff Morales, the

Director at the time the case was originally filed back

in 2002, was succeeded by Tony Harris, Mr.

Kempton’s predecessor, as noted in the Ninth

Circuit’s 2004 Opinion (App. 99), but nevertheless

was errantly named as a party in the caption of the

Ninth Circuit’s 2009 Opinion (App. 1).

TABLE OF CONTENTS

Page

QUBSTIONS PRESEN ED ciccscccsccsccsvssevceccsesverss i

ale are ee asd edness Lan ig iauadean ill

TAs OOP AUT ee FB vc ccceccisecedsncescccscccesocess vill

COR PF COP TIRES occ cssvcceccccccessncessessseesns 1

eles cas eines daginasasabadecbsxdbtrenenee 3

Rs A IUD cv inescsctecenccsecessnvonsctscccsazacvess 3

STATEMENT OF THE CASE. ....................ceeeeeees 3

IT sauces iu csdandd sccasasiacenacseennecvasatoheneanticaes 7

I. THIS COURT SHOULD REVIEW

WHETHER THE COMMERCIAL-

NONCOMMERCIAL DISTINCTION

VIOLATES DUE PROCHSS. ...................... 8

A. The Legal Standard Used for Making

the Commercial-Noncommercial Dis-

tinction Should Be Settled .................. 9

1. The “Common Sense” Approach ..... 9

2. The “Economic Interests” Approach... 13

3. The “Multi-Factor” Approach ......... 16

4. The “Dual Analysis” Approach ....... 18

5. The “Special Care” Approach.......... 25

6. The “Comprehensive Regulation”

Psa cicusssccaueicehauscaccnanoperesses. 26

B. Existing Doctrine Has Been Contin-

uously Criticized by Members of this

SINE in dariciencccsancsrassnce LAREN SA ee a ae 26

TABLE OF CONTENTS — Continued

Page

C. The Ninth Circuit Approach Conflicts

with Other Circuits and the California

I NIT occ 5 sdcsusaveccnvecpckossavesetses 28

i I oo cosa nu iy dak acd gid snnusentaabersnmenenes 32

Il. THIS COURT SHOULD REVIEW

WHETHER THE COMMERCIAL-

NONCOMMERCIAL DISTINCTION IS

OVERBROAD AND CONTENT-BASED... 32

A. The Supreme Court Rules................... 32

B. The Ninth Circuit Rules...................... 34

Oe, | Rn OI goss vn ccccccceccccevccaccccuourececs 38

Ii. THIS COURT SHOULD REVIEW

WHETHER THE GOVERNMENT MUST

PROVE, BY SUBSTANTIAL EVIDENCE,

THAT COMMERCIAL SPEECH RE-

STRICTIONS MATERIALLY ADVANCE

ITS AESTHETIC AND TRAFFIC SAFETY

INTERESTS BOTH IN THE AGGRE-

CZAR ee PRPUE? PARAL © MOOD ovccccs cence vseceveseseces 40

A. The Supreme Court and Sixth Circuit.... 40

ee BE | Se 42

Re UN oi ca ds ce avevessece skew exenest pecicaeiaeus petenead 44

TABLE OF CONTENTS -— Continued

Page

APPENDIX

Ninth Circuit Opinion Dismissing in Part and

Affirming in Part (2/25/09) ...............ccceeeeee App. 1-22

District Court Judgment (3/1/07)................. App. 23-24

District Court Memorandum and Order re 2nd

Motion for Summary Judgment — Equal

IE CP RUPEE ED scsecedecssesccnraseacccsceceseone App. 25-36

District Court Memorandum and Order re

2nd Motion for Summary Judgment

Tian. oc casas ducaenbienrgoncecsabeeveceiiastiaied App. 37-60

District Court Order Directing Defendant

to Amend State Law and Regulations

Gc rubatcas cana ¥inneskeasvhcpuiitzincskinaemenn’ App. 61-63

District Court Minute Order Requesting

Supplemental Briefing of the Act as

Judicially Reformed (4/6/06)..................4. App. 64-65

District Court Memorandum and Order

re: Motions for Summary Judgment

+ EGS EE RE neta learn ee ae oa ae ar nr App. 66-88

District Court Order Requesting Supplemental

Briefing on Remedy (2/22/06) ................ cera App. 89

District Court Order re 1st Motion for

Summary Judgment (1/23/06).................. App. 90-92

District Court Order re Motion for Judgment

on the Pleadings and 3rd Motion to Dismiss

SIN 9. <1 Tiduakansvacugnsdessies keudatevanssebecunents App. 93-94

District Court Minute Order re 2nd Motion to Dis-

miss on Procedural Grounds (6/17/05) ..... App. 95-96

TABLE OF CONTENTS — Continued

Page

U.S. Supreme Court Order Denying Certiorari

[PIE Rccddocdcxéccsdiecatecncscusbedhsunsscsucetenieicbeneanesines App. 97

Ninth Circuit Order Denying Re-hearing

SEEN si hians ccc suinsssusutinenucuavatabanounpenuiiccncrada tials App. 98

Ninth Circuit Opinion Reversing Dismissal

ETINTL: c:\-0i nauandceumbaphesansdomneioniaiednesaenenvinl App. 99-121

District Court Memorandum and Order re

Motion to Dismiss on Procedural Grounds

CINE chi s scckcasseebadurksahbeathntesasesionsnsente App. 122-135

District Court Order re Attorney’s Feces

STE Fictbssscasestactnanes sakvueuniendabecasadbinebeidan App. 136-137

Ninth Circuit Order re Consolidation

gg | 5 } (ES SRE a eet ai eee App. 138-139

Ninth Circuit Order Denying Re-hearing

EL ns App. 140-141

Relevant Excerpts of Law .....................6 App. 142-147

V1ll

TABLE OF AUTHORITIES

Page

CASES

44 Liquormart, Inc. v. Rhode Island, 517 U.S.

IIIT cncsos do diasy dcndalaceanadeckéacdicduniaeienssones 25, 27, 41

Ackerley Communications of Massachusetts,

Inc. v. City of Cambridge, 88 F.3d 33 (CAI1

FRETS re rai en oe eB ry are ho mee Re A Ce 36

Ackerley Communications of the Northwest Inc.

v. Krochalis, 108 F.3d 1095 (CA9 1997)...........35, 43

Arkansas Writers’ Project, Inc. v. Ragland, 481

U.S. 221 (1987)........ ieeiauantalen sevinurnundidiatnevekosvesiceseceenl

Auto Equity Sales v. Superior Court, 57 Cal.2d

SERRE RTS Bene apne arr our aER ee Ne a ere 31

Ballen v. City of Redmond, 466 F.3d 736 (CA9

sR Ep eA Msp tet LEO Ae RE ER paeesesinpanaees 42

Bates v. State Bar of Arizona, 4383 U.S. 350

ea a a a acouoanoends 11,12

Bigelow v. Virginta, 421 U.S. 809 (1975).............10, 12

Board of Trustees of State University of N.Y. v.

Fox, 492 U.S. 469 (1989)

Bolger v. Youngs Drug Products Corp., 463 U.S.

ect las ccc cacedcaued errr: | ey Pes) Me. AF

scebncdvau sénedsone taeceeudandens passim

Carey v. Brown, 447 U.S. 455 (1980) ....................22..-36

Carey v. Population Services International, 431

ry ED ics; cass cascpndsdnsnsabnawdateacel teansapeates 41,12

Central Hudson Gas & Electric Corp. v. Public

Service Commission of New York, 447 U.S.

ne a. cs pep ibaucanandodedawssaeseasouncetseneneene

TABLE OF AUTHORITIES — Continued

Page

City and County of San Francisco v. Eller

Outdoor Advertising, 192 Cal.App.3d 643

(19G'T ) .cces00scccncannsseeiaenMnnaIeeEbbhescteccenesss a ee 30

City of Cincinnati v. Discovery Network, Inc.,

GOT UB. GAG Cae ehiceeseenceescecccccces passim

City of Salinas v. Ryan Outdoor Advertising,

189 Cah. App. Gee Gaee C ee tapas tses ses cscnscscccssevcsccccecece0BO

Clear Channel Outdoor, Inc. v. City of Los

Angeles, 340 F.3d 810 (CA9 2008).............. 28, 35, 43

Commodity Trend Serv., Inc. v. CFTC, 149 F.3d

G79 (CAT Tie iiae err acccescsrecesccccccssces: 29

Consolidated Edison Co. of New York, Inc. v.

Public Service Commission, 447 U.S. 530

@ hs.) re L5

Edenfteld v. Fane, 507 U.S. 761 (1993).......... 40, 41, 42

Friedman v. Rogers, 440 U.S. 1 (1979) ................ 12,13

Glickman v. Wileman Bros. & Elliott, Inc., 521

U.S. SBT CL e rapcre MRR E tate alccsscscscccccccccccsces. 26

Greater New Orleans Broadcasting Assn., Inc.

v. United States, 527 U.S. 173 (1999)............... 27, 41

In re Berry, 68 Cal.2d 137 (1968).......................... ...86

In re Primus, 436 U.S. 412 (1978)........................11, 12

In re R.M.J., 455 U.S. 191 (1982) ................ 13, 15, 16

Kasky v. Nike, Inc., 27 Cal.4th 939 (2002).......9, 30, 31

Lavey v. City of Two Rivers, 171 F.3d 1110 (CA7

1b 2) PR ...29, 38

TABLE OF AUTHORITIES — Continued

Page

Linmark Associates, Inc. v. Township of

Willingboro, 431 U.S. 85 (1977)................4. 10, 11, 12

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525

ERIITEEN . ccncnanushunse ssn capoonen tinnetabamandeniagtnduinaaanmaatannadts 41

Madsen v. Women’s Health Center, Inc., 512

CFs SHEE Ce aacunenckcncekaceenescencubiacsuiadscesuanaas 35, 37, 38

Major Media of the Southeast v. Cily of

Raleigh, 792 F.2d 1269 (CA4 1986)......... aeeneel 29, 30

Maldonado v. Harris, 370 F.3d 945 (CA9 2004)...... 2,6

Maldonado v. Kempton, 422 F.Supp.2d 1169

Cee Ros Eee cctcseresseastenceencusinapsieeabainaatexiameanted 2,6

Maldonado v. Morales, 556 F.3d 1037 (CAQ9

SITE schecckdedudesbiusdunseideusilenbedaieunaetensaanes ama passim

Metro Lights, L.L.C. v. City of Los Angeles, 551

Pe Be CET ii. vcsicascccocccsennsdabensiecuuabanadiasissene ae

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

ET 9 TD thn cccivassanencsesicussrennasuenemauemaanaal passim

Metromedia, Inc. v. City of San Diego, 32

Cal.3d 180 (1982) ............... etbeckclansenksakoiuenieaasanaiae

Miller v. Gammie, 335 F.3d 889 (CA9 2003).............. 42

National Advertising Co. v. City and County of

Denver, 912 F.2d 408 (CA10 LOBO) ........ccccocccccccesess 29

Near v. Minnesota, 283 U.S. 697 (1931) ....................37

Ohralik v. Ohio State Bar Assn., 4386 U.S. 447

CSET cocccdscscebudeanecuscssucntsnutsmaausediaumaenseeneses 11, 12,13

Olsen v. Nebraska, 313 U.S. 236 (1941)..................08. 42

TABLE OF AUTHORITIES ~— Continued

Page

Outdoor Media Group, Inc. v. City of Beaumont,

ee pe GE CA GE P vccecencccreccrsscesenccavcenscence 28, 35

Outdoor Systems, Inc. v. City of Mesa, 997 F.2d

604 (CAD 1993).............cccccecerescsceeees 28, 34, 35, 43, 44

Pagan v. Fruchey, 492 F.3d 766 (CA6 2007).............. 42

Payne v. Tennessee, 501 U.S. 808 (1991)...............0.... 26

People v. Crittenden, 9 Cal.4th 83 (1994) ..................31

People ex rel. Dept. of Transp. v. Maldonado, 86

ED EY CRIED veicvsveccncsunsnsiscicsenunessenssenss 4,5

Pittsburgh Press Co. v. Pittsburgh Commis-

sion on Human Relations, 413 U.S. 376

¢ . ) eee jaamaee Jaaciiilen spaiaaauee sae 9, 12, 13, 15

Rappa v. New Castle County, 18 F.3d 1043

8 EAL ERE RR = TF

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377

Riley v. Nat. Fed. of the Blind of North

Carolina, Inc., 487 U.S. 781 (1988)............ 18, 21, 22

Rodriguez de Quijas v. Shearson/American

Exp., Inc., 490 U.S. 477 (1989) ...........cccccssrescssrevsess 44

Rubin v. Coors Brewing Co., 514 U.S. 476

CITED cousinsiletddednipdeapedbeteinssadacentonsnasis vakeemsaeactantomacenetant 41

Solantic, LLC v. City of Neptune Beach, 410

F.3d 1250 (CA11 2005)........ cadieaimatibeldhsthaansautiadameee

Thompson v. Western States Medical Center,

535 U.S. 357 (2002) : ; 27

TABLE OF AUTHORITIES — Continued

Page

Times Film Corp. v. City of Chicago, 365 U.S

ae © BIEL D cosuceccsncencenesesocsesos RPE EPR ALE ADR LEARNS OST

Turner Broadcasting System, Inc. v. FCC, 512

ee 2 icdamnounbarecnusanaccuen ane

U/).D. Registry, Inc. v. State, 144 Cal.App.4th

ty I hcinnstccctccchaceddeduabsunebyronmsuresciuabanendadensevepesseuane

U.S. v. Edge Broadcasting Co., 509 U.S. 418

(1993)... Sheannaeuie Se ; ss 41

United States v. United Foods, Inc., 533 U.S.

IIIT iiss bcundcinsueweercaveledtescusavasss PATA OER 26

Valentine v. Chrestensen, 316 U.S. 52 (1943).. 13, 27

Vance v. Universal Amusement Co., Inc., 445

Oe i leuseeas 37

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982).....................15, 16

Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620 (1980) ................ 13,14

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S

1, 2h.) Sonne epeaees 20, 12, 13, 2é

CONSTITUTIONS

U.S. Constitution, First Amendment. ...passim

U.S. Constitution, Fourteenth Amendment passim

xi1l

TABLE OF AUTHORITIES - Continued

Page

STATUTES

California Outdoor Advertising Act (Calif. Bus.

and Prof. Code § 5200 et seq.)...............ceseeeees- passim

INC cc siatis ca pccxtetensnsnigesua ddvubedenaveoneisaiewncsotesstrecseal 3,4

MIE sadvenu unison vs en vcs deabanensienbonecresbaarserersecdeeeeuneds 7,8

as sat daedss speedier ds ub kur exatarcuséoabandinuseccomeich auaeeresoes 4

Se IIL 4. uesa-shtdeeee ake assetahaceudunderedessduneneviseeniacseeetaeeaeee: 4

dis ouisuas ceuesecavsnediensn tude annocdareeeniescicunebendeonadetins 4,5

SNL Trae ccatcimebaieabateutredohcedstcascenenecnuavedamateuen mete 4

RULES

| Es ARE Ek ERED? rent abad- be Satie eo aie Ao MSO DROREPD 9, 28, 32, 40

Scalia, The Rule of Law as a Law of Rules, 56

Wy Rts Bs OU 1E7G,. LETT (RGGI OD ov ciscncssccccsdsencevaceier. 42

ORDERS AND OPINIONS

The various orders and opinions of the United

States District Court for the Northern District of

California (per Breyer, J.); two panels of the United

States Court of Appeals for the Ninth Circuit (per B.

Fletcher, Reinhardt, and Restani; and McKeown,

Callahan, and Siler, J.J.); and the United States

Supreme Court are re-printed as follows:

Ninth Circuit Opinion Dismissing in Part and Af-

firming in Part (2/25/09); App. 1-22 (officially reported

as Maldonado v. Morales, 556 F.3d 1037 (CA9 2009));

District Court Judgment (3/1/07); App. 23-24;

District Court Memorandum and Order re 2nd

Motion for Summary Judgment — Equal Protection

(1/10/07); App. 25-36 (unofficially reported as 2007

WL 108414);

District Court Memorandum and Order re 2nd

Motion for Summary Judgment (7/13/06); App. 37-60

(unofficially reported as 2006 WL 1980393);

District Court Order Directing Defendant to

Amend State Law and Regulations (4/11/06); App. 61-

63;

District Court Minute Order Requesting Supple-

mental Briefing of the Act as Judicially Reformed

(4/6/06); App 64-65;

District Court Memorandum and Order re: Mo-

tions for Summary Judgment (3/23/06); App. 66-88

(officially reported as Maldonado v. Kempton, 422

F.Supp.2d 1169 (N.D. Cal. 2006));

District Court Order Requesting Supplemental]

Briefing on Remedy (2/22/06); App. 89;

District Court Order re 1st Motion for Summary

Judgment (1/20/06); App. 90-92;

District Court Order re Motion for Judgment on

the Pleadings and 3rd Motion to Dismiss (10/25/05),

App. 93-94;

District Court Order re 2nd Motion to Dismiss on

Procedural Grounds (6/17/05), App. 95-96;

U.S. Supreme Court Order Denying Certiorari

(4/4/05), App. 97 (officially reported as Kempton uv.

Maldonado, 544 U.S. 968 (2005));

Ninth Circuit Order Denying Re-hearing (8/27/04),

App. 98;

Ninth Circuit Opinion Reversing Dismissal

(6/4/04), App. 99-121 (officially reported as Maldo-

nado v. Harris, 370 F.3d 945 (CA9 2004)):

District Court Memorandum and Order re

Motion to Dismiss on Procedural Grounds (11/27/02),

App. 122-135;

District Court Order re Attorney’s Fees (3/8/07;

App. 136-137;

Ninth Circuit Order re Consolidation (5/17/07);

App. 138-139;

Ninth Circuit Order Denying’ Re-hearing

(6/24/09); App. 140-141.

JURISDICTION

The Ninth Circuit rendered its decision on

February 25, 2009, and denied re-hearing on June 24,

2009. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

LEGAL PROVISIONS

The legal provisions involved are the California

Outdoor Advertising Act and the First and Four-

teenth Amendments to the U.S. Constitution. App.

142-147.

STATEMENT OF THE CASE

The most famous billboard in Silicon Valley (at

least among lawyers and judges) belongs to petitioner

Nano Maldonado. It stands above a warehouse, be-

hind a sound wall, adjacent to an eight-lane stretch of

Interstate Highway 101 in Redwood City, California.

The billboard was erected in 1956 pursuant to a

valid municipal building permit. At the time it was

built, the California Outdoor Advertising Act (“Act”)

did not apply within the jurisdiction of cities. Former

Calif. Bus. and Prof. Code § 5226; Stats. 1939, ch. 32,

p. 334 (stating that Act applied “in any territory of

the State of California, other than the territory within

incorporated cities and towns”) (emphasis added).

In 1967, the Act was substantially revised. The

municipal exclusion was dropped, and all billboards

within “landscaped” zones were generally banned.

§ 5440; App. 143. Non-conforming billboards were

given a three-year grace period before they became

subject to removal. § 5441; App. 144. Billboards dis-

playing onsite messages (i.e., those which “advertise

goods manufactured or produced, or services ren-

dered, on the property upon which the advertising

display is placed”) were exempted from the ban.

§ 5442(c); App. 143.

Maldonado acquired the warehouse and billboard

in the early 1990’s and offered to lease both to all

comers. Sometime thereafter, the California Depart-

ment of Transportation (“Caltrans”) initiated enforce-

ment proceedings against Maldonado for displaying

offsite messages under the Act’s nuisance per se

provision. § 5461; App. 144. Maldonado argued that

the messages should be deemed onsite because he

had granted the advertisers leasehold interests in the

warehouse. The trial court disagreed and issued a

permanent injunction against further offsite adver-

tising, and the ruling was mostly affirmed on appeal

in a published decision. People ex rel. Dept. of Transp.

v. Maldonado, 86 Cal.App.4th 1225 (2001) (“Maldo

nado I”).

Caltrans subsequently obtained contempt convic-

tions against Maldonado for publishing offsite mes-

sages in violation of the injunction, but Maldonado

was also held in contempt for publishing messages

such as, “Available for Onsite Use,” which the Act

seemed to exempt. § 5442(a) (exempting advertise-

ments for “the sale or lease of the property upon

which the advertising display is placed”).

Maldonado retained new legal counsel and in

2002 filed this federal action for injunctive relief

against the Director of Caltrans, claiming the Act,

and the state court injunction based thereon, were

unconstitutional. The District Court dismissed chal-

lenges to the Act’s permitting scheme for lack of

standing. App. 127-128 citing Maldonado TI at 1233

(“So long as the portion of Highway 101 alongside

appellant’s property is designated ‘landscaped free-

way, permits are irrelevant to any advertising there-

on.”). The other claims were dismissed under the

doctrines of res judicata and Rooker-Feldman on the

ground that they should have been brought in the

previous state court proceeding. App. 128-135.

Immediately following the dismissal, Caltrans

hauled Maldonado back into state court and pros-

ecuted him for contempt for publishing the messages,

“In God We Trust” “We Pray for World Peace” and

“Help Stop Terrorism.” Caltrans won a contempt con-

viction against Maldonado for publishing the Habitat

for Humanity message, “With your help we’re Build-

ing Community on the Peninsula.”

Meanwhile, Maldonado appealed the federal

dismissal based on res judicata and Rooker-Feldman

grounds, and eventually won a reversal. App. 99-121;

Maldonado v. Harris, 370 F.3d 945 (CAQ 2004)

(“Maldonado II”), cert. denied, sub nom., Kempton v.

Maldonado, 544 U.S. 968 (2005).

On remand, the District Court granted Maldo-

nado’s summary judgment motion and declared the

Act unconstitutional on its face because the offsite

prohibition favored onsite commercial speech over

noncommercial speech. App. 66-83; Maldonado ov.

Kempton, 422 F.Supp.2d 1169, 1170-1176 (N.D. Cal.

2006) (“Maldonado III”). However, as a remedy the

District Court purported to judicially reform the state

law. App. 83-87; id. at 1176-1179. The state court

injunction was left intact (the District Court merely

ordered a copy of its decision to be attached to any

subsequent order to show cause re contempt), and the

federal judge also ordered the Director of Caltrans to

seek regulatory and statutory amendment. App. 61-

63.

Maldonado immediately filed an interlocutory

appeal (case no. 06-15657), arguing that a federal

judge has no authority to re-write.a state law (or

order that it be re-written), the federal injunction was

too vague to be enforced under F.R.C.P. 65(d), and

that the Act was not otherwise severable under

California law.

Meanwhile, the District Court ordered that Mal-

donado’s remaining summary judgment arguments be

re-written in light of the judicial reformation. App.

64-65. The District Court eventually granted sum-

mary judgment to the Director of Caltrans on all of

the remaining claims. App. 37-60 (prior restraint,

vagueness and suppression doctrine); App. 25-36

(equal protection).

Maldonado filed an appeal from the final judg-

ment (case no. 07-15535) and the appeals were con-

solidated. App. 138-139. But after briefing, a new

statutory amendment (similar to the District Court’s

judicial reformation) took effect. § 5275 (“Notwith-

standing any other provision of this chapter, the

director may not regulate noncommercial, protected

speech contained within any advertising display

authorized by, or exempted from, this chapter.”).

The Ninth Circuit dismissed the interlocutory

appeal of the remedial issues as moot in light of the

statutory amendment, and otherwise affirmed the

District Court judgment on the merits. App. 1-22;

Maldonado v. Morales, 556 F.3d 1037 (“Maldonado

IV”). Review en banc was denied. App. 140-141.

The basis for federal jurisdiction in the District

Court was 28 U.S.C. § 1343(a)(3).

ARGUMENT

The text of the First Amendment does not

distinguish between commercial and noncommercial

speech. But ever since the New Deal, this Court (and

others) have unsuccessfully tried to articulate a

standard that would allow government to regulate

the former, without abridging the latter.

Now before the Court is an American citizen who

has been told by the Ninth Circuit that he can be

summarily punished in a contempt proceeding, or

even convicted of a crime, for placing truthful, non-

misleading advertisements about lawful products and

services on his own legally built billboard structure

which is located on private property. Worse yet, the

government admittedly does not enforce the ban

against others in the same zone.

Petitioner contends that the commercial-non-

commercial distinction is arbitrary and that so long

as the billboard structure is legal it makes no

difference whether the message being published is

commercial or noncommercial.

I. THIS COURT SHOULD REVIEW WHETHER

THE COMMERCIAL-NONCOMMERCIAL DIS-

TINCTION VIOLATES DUE PROCESS

The commercial-noncommercial distinction was

created by a 2008 amendment which exempts “non-

commercial, protected speech” from _ regulation.

§ 5275. The Ninth Circuit ruled the distinction is con-

stitutionally valid (i.e., not vague or overbroad under

the First Amendment and Due Process Clause of the

Fourteenth Amendment), even for purposes of crim-

inal punishment. Maldonado IV, 556 F.3d 1037, 1045-

1046.

A. The Legal Standard Used for Making

the Commercial-Noncommercial Dis-

tinction Should Be Settled

Review is warranted because the Ninth Circuit

has decided an important question of federal law that

has not been, but should be, settled by this Court.

Rule 10(c).

As the California Supreme Court has recognized,

this Court “has not adopted an all-purpose test to

distinguish commercial from noncommercial speech

under the First Amendment... .” Kasky v. Nike, Inc.,

27 Cal.4th 939, 960 (2002), cert. dism., 539 U.S. 654

(2003).

As demonstrated below, not only is_ the

commercial-noncommercial distinction unsettled, it is

also doctrinally convoluted, distressingly bewildering

to practitioners and judges, and hopelessly confusing

to lay people.

1. The “Common Sense” Approach

The “Common Sense” Approach to making the

commercial-noncommercial distinction was developed

in the 1970’s, beginning with this Court’s pronounce-

ment that “commercial speech” content “does no more

than propose a commercial transaction.” Pittsburgh

Press Co. v. Pittsburgh Commission on Human Rela-

tions, 413 U.S. 376, 385 (1973) (emphasis added)

(upholding injunction prohibiting abetting of “illegal

commercial activity” — proposals to hire employees

based upon gender — communicated via newspaper

want-ads).

Thereafter, that test was used to reject the

argument that proposals to arrange legal abortion

services communicated via newspaper ads constituted

unprotected commercial speech. Bigelow v. Virginia,

421 U.S. 809, 822 (1975) (“The advertisement pub-

lished in appellant’s newspaper did more than simply

propose a commercial transaction.”).

Next, this Court struck down a law which

regulated all proposals by pharmacists to sell “the X

prescription drug at the Y price.” Virginia State Board

of Pharmacy v. Virginia Citizens Consumer Council,

Inc., 425 U.S. 748, 761 (1976). The commercial-

noncommercial distinction appeared to become a

distinction without a difference when this Court

expressly rejected the argument that “speech which

does no more than propose a commercial transaction”

lacks all First Amendment protection. /d., 425 U.S.

748, 762; see also, id. at 770 (acknowledging that

“commercial speech, like other varieties, is pro-

tected”); and id. at 771-773 (clarifying that commer-

cial speech is subject to same limitations as other

forms of protected speech).

Thereafter, this Court struck down a prohibition

on proposals to sell residential real estate communi-

cated via yard signs. Linmark Associales, Inc. v.

Township of Willingboro, 131 U.S. 85, 86 (1977).

Although the “for sale” signs were clearly commercial,

this Court applied strict scrutiny — but was careful to

say that the commercial-noncommercial distinction

may still be relevant to false and misleading com-

mercial speech. Jd. at 98 (suggesting “different degree

of protection” might be necessary, but leaving the

question “for another day”).

Strict scrutiny was also applied to commercial

advertising regulations in the next two cases, but this

Court again emphasized the speech was not false or

misleading. Carey v. Population Services Interna-

tional, 431 U.S. 678, 701 (1977); Bates v. State Bar of

Arizona, 433 U.S. 350, 372-375 (1977).

The “common sense” difference between false and

misleading commercial speech, versus “other vari-

eties of speech,” finally came into play the next year.

Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-

456 (1978) (“We have not discarded the ‘common

sense’ distinction... .”).

In Ohralik, this Court upheld an anti-solicitation

rule as applied to an attorney in private practice. But

in a companion case, this Court held that solicitations

by ACLU attorneys could not be punished because

such activity was deemed “political.” Jn re Primus,

436 U.S. 412, 422 (1978). The stated difference was

the “pecuniary motivation” of the private attorney

which created “special problems of conflict of

interest.” Ohralik at 461, n. 19; and itd. at 469

(Marshall, J., concurring in part and concurring in

judgments of both Ohralik and Primus) (agreeing

that Ohralik engaged in “classic examples of ‘ambu-

lance chasing, fraught with obvious potential for

misrepresentation and overreaching”). In Ohralik, no

proof of actua: harm was required. /d. at 462-468.

The next case also differentiated between false

and misleading commercial speech and other vari-

eties of speech when it upheld a law prohibiting

optometrists from proposing to provide optometry

services communicated via a trade name. Friedman uv.

Rogers, 440 U.S. 1, 5 and n. 6 (1979). First, this Court

held that the purpose of a trade name “is strictly

business” and therefore it “is a form of commercial

speech, and nothing more.” /d. at 11; see also, n. 9

and 10 (discussing the Pittsburgh Press test and con-

trasting cases wherein speech did more than propose

a commercial transaction). Then this Court held that

“there is a significant possibility that trade names

will be used to mislead the public.” /d. at 13.

The four rules to be derived from the “Common

Sense” Approach are as follows:

Rule 1: Restrictions upon speech which does

more than propose a lawful commercial transaction

should generally be analyzed under strict scrutiny.

E.g., Bigelow and Primus.

Rule 2: Restrictions upon truthful, non-misleading

speech which does no more than propose a lawful

commercial transaction should also be analyzed

under strict scrutiny. E.g., Virginia Pharmacy, Lin

mark, Carey, and Bates.

Rule 3: But restrictions upon speech which does

no more than propose a lawful commercial trans-

action should be analyzed under rational basis

scrutiny “when the particular content or method of

the advertising suggests that it is inherently mis-

leading or when experience has proved that in fact

such advertising is subject to abuse... .” Jn re R.M.2/.,

455 U.S. 191, 202-203 (1982) citing Ohralik and

Friedman.

Rule 4: Restrictions upon speech proposing an

illegal commercial transaction should also be ana-

lyzed under rational basis scrutiny, and the prior

restraint doctrine is inapplicable. E.g., Pittsburgh

Press.

2. The “Economic Interests” Approach

In 1980, this Court struck down a law that

prohibited certain organizations (those which did not

spend at least 75% of proceeds on charitable pur-

poses) from making proposals to collect charitable

contributions communicated via in-person solicita-

tions on public sidewalks and door-to-door. Village of

Schaumburg v. Citizens for a Betier Environment, 444

U.S. 620, 624 (1980).

Significantly, this Couit explicitly recognized

that Virginia Pharmacy had overruled Valentine v.

Chrestensen, 316 U.S. 52 (1943) and several other

Supreme Court cases which had generally indicated

that commercial speech was excluded from First

Amendment protection. Jd. at 632, n. 7 (“those

decisions, to that extent, are no longer good law”).

But just as significantly, this Court altered the

“Common Sense” Approach for commercial speech by

replacing the “propose a commercial transaction”

language with much broader language. Jd. at 632

(“because charitable solicitation does more than

inform private economic decisions and is not pri-

marily concerned with providing information about

the characteristics and costs of goods and services, it

has not been dealt with in our cases as a variety of

purely commercial speech”) (emphasis added).

This new definition was later refined as “ex-

pression related solely to the economic interests of

the speaker and its audience.” Central Hudson Gas &

Electric Corp. v. Public Service Commission of New

York, 447 U.S. 557, 561 (1980).

Central Hudson also dramatically changed the

level of scrutiny — lower scrutiny was used to analyze

a speech regulation, even though there was no

allegation that the speech proposed an illegal trans-

action, or that its content or manner of communi-

cation created a significant possibility of false or

misleading statements. Central Hudson at 566-571

(striking down law prohibiting utilities from adver-

tising electricity).

This Court decreed that the Constitution gen-

erally “accords a lesser protection to commercial

speech than to other constitutionally guaranteed

expression” and henceforth commercial speech was

generally to be judged under intermediate scrutiny —

the four-pronged paradigm that has come to be

known as “the Central Hudson test.” Id. at 563-566. A

companion case compared commercial speech with

libel and obscenity. Consolidated Edison Co. of New

York, Inc. v. Public Service Commission, 447 U.S. 530,

538-539 and n. 5.

In 1982 this Court struck down an anti-soliciting

rule as applied to an attorney who had proposed to

sel] his services via direct mail, newspaper ads, and

phone book “yellow page” ads. R.M.J., 455 U.S. 191,

197-198. The speech was classified as commercial

under the “economic interests” test. Jd. at 204, n. 17.

Intermediate scrutiny was used because, unlike

personal solicitation, there was nothing misleading

about the form or content of the speech. fd. at 205-

207.

Thereafter, this Court upheld a law regulating

the sale of drug paraphernalia which used “the

proximity of drug-related literature as an indicium”

that paraphernalia was being marketed for use with

illegal drugs. Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 496 (1982). To

the extent that the law chilled the display of litera-

ture, this Court re-affirmed that “speech proposing an

illegal transaction” has no First Amendment protec-

tion. Jd. citing Pittsburgh Press.

Under the “Economic Interests” Approach, the

first two rules of the “Common Sense” Approach were

merged:

Restrictions upon truthful, non-misleading

expression related solely to the lawful ec-

onomic interests of the speaker and its

audience is commercial speech which is

categorically subject to intermediate scru-

tiny.

Meanwhile, the last two rules of the “Common

Sense” Approach mandating rational basis review for

false and misleading commercial speech. as well as

speech proposing illegal commercial transactions

apparently survived. Central Hudson, 447 U.S. 557,

563-564 (“(T]here can be no constitutional objection to

the suppression of commercial messages that do not

accurately inform the public about lawful activity.

The government may ban forms of communication

more likely to deceive the public than to inform it, or

commercial speech related to illegal activity.”) (cita-

tions omitted); accord, Hoffman Estates.

But in a frank acknowledgment this Court recog-

nized that its jurisprudence did “not afford precise

guidance to the bar and the courts” as to the

admittedly “developing area of the law.” R.M.J., 455

U.S. 204, n. 16.

3. The “Multi-Factor” Approach

In 1983, the category of commercial speech was

seemingly narrowed when this Court added addi-

tional factors to the “Economic Interests” Approach.

Bolger v. Youngs Drug Products Corp., 463 U.S. 60,

67 (1983) (economic motivation “would clearly be

insufficient by itself to turn the materials into com-

mercial speech”).

The “common sense” definition of commercial

speech as that which does no more than propose a

commercial transaction was invoked, but distin-

guished as merely the “core notion of commercial

speech.” Bolger at 64-66.

This Court then announced a new multi-factor

test for determining whether speech that does more

than propose a commercial transaction may neverthe-

less be classified as commercial speech. Bolger at

66-67 (considering whether the publication was “con-

ceded” to be commercial, made “reference to a specific

product,” and whether speaker had “economic moti-

vation” for publishing); and id. at 67-68 (holding

that “[t]he combination of all these characteristics”

provided “strong support” for conclusion that a

publication about venereal disease that mentioned a

condom manufactured by the publisher was com-

mercial) (emphasis in original).

Thus, the “Economic Interests” rule was split into

two new rules:

1. Restrictions upon truthful, non-misleading

speech which does no more than propose a lawful

commercial transaction (1.e., “core” commercial speech)

are reviewed under intermediate scrutiny.

2. Restrictions upon other speech may be re-

viewed under intermediate scrutiny if certain factors

indicate that the speech is commercial (e.g., the

speech is conceded to be commercial, makes reference

to a specific product, and is made by someone with an

economic motivation for the publication).

For years after Bolger, this Court did not have

occasion to distinguish between commercial and non-

commercial speech. But when it finally did, this Court

openly questioned whether “economic motive” was a

reliable indicator of commercial speech. Riley v. Nat.

Fed. of the Blind of North Carolina, Inc., 487 U.S.

781, 795 (1988) (“It is not clear that a professional’s

speech is necessarily commercial whenever it relates

to that person’s financial motivation for speaking. .. .”).

However, rather than rejecting the “Multi-

Factor” Approach, this Court simply avoided the

issue. Id. at 796 (“assuming, without deciding” that

speech related to a “professional fundraiser’s profit

from the solicited contribution” was commercial “in

the abstract”).

4. The “Dual Analysis” Approach

A fourth approach was utilized by this Court in

the midst of developing the “Economic Interests”

Approach.

A response to Justice Stevens’ concurrence in

Central Hudson suggested that protecting speech

which combines commercial and noncommercial ele-

ments “would blur further the line the Court has

sought to draw in commercial speech cases” and “the

State retains the power to insure that the stream of

commercial information flows cleanly as well as

freely.” Central Hudson, 447 U.S. 557, 563, n. 5 (em-

phasis added, internal quotes and brackets omitted).

In other words, messages combining commercial and

noncommercial speech were unprotected because they

could not be easily categorized; for the sake of ana-

lytical clarity (and judicial convenience) government

could act as editor-in-chief and require speakers to

self-cleanse (i.e., censor or segregate) their messages

into purely noncommercial publications.

Soon thereafter, this Court struck down a law

that prohibited all billboards, except those which

“advertised goods or services available on the prop-

erty where the sign is located.” Metromedia, Inc. v.

City of San Diego, 453 U.S. 490, 508 (1981).

In Metromedia, the recently espoused “Economic

Interests” Approach was ignored, and a new gloss was

put on “the common-sense” distinction; the “legal

distinction” was subtly redefined as “speech pro-

posing a commercial transaction.” Jd. at 506; and id.

at 507 (explaining “commercial price and product

advertising” is different than “ideological communi-

cation”).

The deceptively familiar sounding definition was

narrower than “expression related solely to the eco-

nomic interests of the speaker and its audience.” But

it was significantly broader than speech which “does

no more than propose a commercial transaction” since

it ostensibly zrcluded commercial proposals that are

combined with noncommercial messages.

On its face, the San Diego law regulated both

commercial and noncommercial speech. Metromedia

at 504 (“although the bulk of their business consists

of offsite signs carrying commercial advertisements,

their billboards also convey a substantial amount of

noncommercial advertising”); 496 (same); see also, id.

at 525, n. 4 (Brennan, J., concurring in judgment)

(quoting some of the noncommercial messages).

But in an unprecedented move, this Court stated

that both the Central Hudson test and strict scrutiny

should be applied to the same law. Metromedia at

504-505 (“Because our cases have consistently

distinguished between the constitutional protection

afforded commercial as opposed to noncommercial

speech, in evaluating appellants’ contention we con-

sider separately the effect of the ordinance on com-

mercial and noncommercial speech.”).

A five justice majority upheld the restrictions on

offsite commercial advertising. Jd. at 507-512. But a

six justice majority concurred in the judgment that

the entire law was nevertheless facially invalid. Jd. at

512-517, 521 (plurality opn.) (“it is unconstitutional

on its face”) and 524-534, 540 (conc. opn.) (“I would

reverse the decision of the California Supreme

Court”).

Justice Brennan pointedly criticized the mode of

analysis used in the lead opinion. /d. at 522 (Brennan,

J., concurring in judgment, joined by Blackmun, J.)

(“I believe the plurality’s bifurcated approach itself

raises serious First Amendment problems and relies

on a distinction between commercial and noncom-

mercial speech unanticipated by our prior cases.”)

and id. at 534-540 (discussing the problems).

For years, the unprecedented “Dual Analysis”

Approach of Metromedia was virtually ignored by this

Court. Then in 1988, speaking through Justice

Brennan, this Court seemingly disavowed the “Dual

Analysis” Approach without mentioning Metromedia

by name:

[W]e do not believe that the speech retains

its commercial character when it is inex-

tricably intertwined with otherwise fully

protected speech.... Thus, where, as here,

the component parts of a single speech are

inextricably intertwined, we cannot parcel

out the speech, applying one test to one

phrase and another test to another phrase.

Such an endeavor would be both artificial

and impractical. Therefore, we apply our test

for fully protected expression.

Riley, 487 U.S. 781, 796.

However, to paraphrase Mark Twain, any report

of the demise of the “Dual Analysis” Approach was

clearly premature. The following year, with nary a

word about the other approaches, this Court res-

urrected the Metromedia definition of commercial

speech. Board of Trustees of State University of N-Y. v.

Fox, 492 U.S. 469 (1989).

In Fox the rule that a commercial message does

no more than propose a commercial transaction was

once again slyly absent. Moreover, for the first (and

last) time since Metromedia, this Court indicated that

both Central Hudson analysis and strict scrutiny

should be utilized to determine the constitutionality

of a single regulation.

At issue was the validity of a college dormitory

regulation as applied to prospective Tupperware par-

ties. This Court stated, “There is no doubt that the

AFS ‘Tupperware parties’ the students seek to hold

‘propose a commercial transaction,’ which is the test

for identifying commercial speech... .” Jd. at 473-474,

and see, id. at 472 (party “consists of demonstrating

and offering products for sale to groups of 10 or more

prospective buyers”).

But this Court also acknowledged that they did

more. ld. at 474 (“They also touch on other subjects,

however, such as how to be financially responsible

and how to run an efficient home.”). Nevertheless,

this Court characterized the speech “as a whole” as

commercial. Fox at 473-474.

This Court distinguished Filey by the fact that

the commercial speech there was “‘inexplicably inter-

twined’ because the state law required it to be

included.” Fox at 474.

However, after upholding the restriction as-

applied to prospective Tupperware parties, this Court

next recognized that the regulation “must be deemed

to reach some noncommercial speech” because the

regulation also applied to “tutoring” and “job coun-

seling” if “provided (for a fee) in students’ dormitory

rooms” and the information conveyed by such activ-

ities did not plausibly constitute commercial speech.

Fox at 482 (“While these examples consist of speech

for a profit, they do not consist of speech that pro-

poses a commercial transaction, which is what de-

fines commercial speech... .”).

For procedural reasons, this Court remanded the

case back to the lower courts to determine the merits

in the first instance. Fox at 485-486.

The following rules can be synthesized from the

“Dual Analysis” Approach:

1. Restrictions upon truthful non-misleading

speech proposing a lawful commercial transaction are

analyzed under intermediate scrutiny.

2. Restrictions upon truthful, non-misleading

speech which does more than propose a lawful com-

mercial transaction (/.e., commercial speech which is

combined with noncommercial speech) are also

analyzed under intermediate scrutiny — unless the

law requires the inclusion of content, or the speech

taken as a whole is deemed by enforcement officers

and judges to be noncommercial under unspecified

standards.

3. To ensure full First Amendment protection

(strict scrutiny), noncommercial messages must be

communicated independently of messages that pro-

pose a commercial transaction.

The revival of the “Dual Analysis” Approach was

hardly celebrated. A few years later this Court,

including the author of Fox, expressed serious doubt

about the propriety of laws which require government

enforcement officers to distinguish between com-

mercial and noncommercial speech. City of Cincinnati

vu. Discovery Network, Inc., 507 U.S. 410, 419-423

(1993).

In Cincinnati the characterization of the speech

was not at issue. /d. at 416 (“respondents do not chal-

lenge their characterization as ‘commercial speech’”),

Nevertheless, this Court spent five pages pointing out

“the difficulty of drawing bright lines that will clearly

cabin commercial speech in a distinct category” and

ultimately concluded that “the difference is a matter

of degree.” Id. at 419-423.

Notably, this Court questioned the efficacious-

ness of the Fox test. Id. at 423 (“Under the Fox test it

is clear that much of the material in ordinary news-

papers is commercial speech and, conversely, that the

editorial content in respondents’ promotional publica-

tions is not what we have described as ‘core’ com-

mercial speech.”).

And most significantly, at the end of its dicta this

Court noted that the commercial-noncommercial

distinction “raises some of the same concerns” about

arbitrariness faced in past cases and “is by no means

clear.” Id. at 423, n. 19 (citing, among others, Justice

Brennan’s concurrence in Metromedia, 453 U.S. 490,

536-537).

5. The “Special Care” Approach

After Fox, this Court reviewed a law which

forbade publishing the price of alcohol offered for sale

via newspapers. 44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484, 493 (1996). This Court struck down the

law because the government “failed to carry its heavy

burden of justifying its complete ban on price adver-

tising....” Jd. at Part VIII, p. 516 (Stevens, J., joined

by Scalia, Kennedy, Souter, Ginsburg, J.J.). However,

no mode of analysis attracted a majority.

In Part III, a plurality reiterated that this Court

has analyzed “blanket bans” with “special care” and

that “in recent years this Court has not approved a

blanket ban on commercial speech unless the ex-

pression itself was flawed in some way, either because

it was deceptive or related to unlawful activity.” Id. at

500 (Stevens, J., joined by Kennedy, Souter and Gins-

burg, J.J.) (emphasis added) quoting Central Hudson

at 447 U.S. 566, n. 9.

In Part IV, a plurality argued that the deferential

Central Hudson test should not be applied to all

speech which qualifies as commercial under the Fox

test:

As our review of the case law reveals, Rhode

Island errs in concluding that all commercial

speech regulations are subject to a similar

form of constitutional review simp!y because

they target a similar category of expression.

The mere fact that messages propose com-

mercial transactions does not in and of itself

dictate the constitutional analysis that should

apply to decisions to suppress them.

Id. at 501 (emphasis in original). The plurality went

on to argue that “truthful, non-misleading commer-

cial messages” must be scrutinized with “special care”

even if the communication “does no more than

propose a commercial transaction.” /d. at 501-504.

To the extent that “special care” means strict

scrutiny, the “Special Care” Approach appears identi-

cal to the “Common Sense” Approach of the late

1970's.

6. The “Comprehensive Regulation”

Approach

This Court has also announced a “Comprehensive

Regulation” Approach that has been used to analyze

regulations which coerce farmers to fund generic

advertising. Glickman v. Wileman Bros. & Elliott,

Inc., 521 U.S. 457 (1997); United States v. United

Foods, Inc., 533 U.S. 405 (2001). Since the approach

has no apparent applicability to this case it will not

be discussed.

B. Existing Doctrine Has Been Continu-

ously Criticized by Members of this

Court

Review of constitutional questions is appropriate

when criticism or doubt begins to permeate opinions

of members of this Court. Cf, Payne v. Tennessee, 501

U.S. 808, 829 (1991); eg., Virginia Pharmacy, 425

U.S. 748, 759 and n. 16 (recognizing Valentine

Approach “had come under criticism or was regarded

as of doubtful validity by Members of the Court, [and]

was avoided” in a recent case).

Here, “several Members of the Court have

expressed doubts about the Central Hudson analysis

and whether it should apply in particular cases...

Thompson v. Western States Medical Center, 535 U.S.

357, 367-368 (2002) citing Greater New Orleans

Broadcasting Assn., Inc. v. United States, 527 U.S.

173, 197 (1999) (Thomas, J., concurring in judgment);

44 Liquormart, 517 U.S. 484, 501, 510-514 (Stevens,

J., joined by Kennedy and Ginsburg, J.J.); id. at 517

(Scalia, J., concurring in part and concurring in

judgment); and id. at 518 (Thomas, J., concurring in

part and concurring in judgment). See also, Cin-

cinnati, 507 U.S. 410, 431-438 (Blackmun, J., con-

curring).

Moreover, this Court has completely avoided the

Commercial Speech Doctrine during the last several

years, perhaps in recognition of the dystopian state of

the law. E.g., 44 Liquormart, 517 U.S. 484, 518

(Scalia, J., concurring in the judgment) (“I am not

disposed to develop new law, or reinforce old, on this

issue... .”).

C. The Ninth Circuit Approach Conflicts

with Other Circuits and the California

Supreme Court

Review is warranted because the Ninth Circuit

has decided an important question of federal law in a

way that conflicts with another circuit court, or state

court of last resort. Rule 10(a).

Despite this Court’s own recognition of doctrinal

problems, even the Ninth Circuit has lacked the

audacity to rule that the standards articulated by

this Court violate Due Process, stating, “sufficient

guidance in categorizing speech as commercial or

noncommercial is provided by various decisions of the

Supreme Court” and that if those definitions do not

provide appropriate standards “it is hard to imagine

what would.” Outdoor Systems, Inc. v. City of Mesa,

997 F.2d 604, 613 (CA9 1993) followed in Clear

Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d

810, 816 (CA9 2003); Outdoor Media Group, Inc. v.

City of Beaumont, 506 F.3d 895, 902, 904 (CA9 2007);

and Maldonado IV, 556 F.3d 1037, 1045-1046.

But since this Court has merely criticized — not

overruled — the various approaches it has articulated,

each jurisdiction has had to speculate and surmise

what approach to use in particular cases. Such

conjecture has resulted in lack of predictability, and

lack of uniformity.

In billboard cases, the Ninth Circuit has opted

for the “Dual Analysis” Approach. Mesa, 997 F.3d 604,

610 (although “somewhat uneasy” about the con-

tinued validity of the commercial-noncommercial dis-

tinction after Cincinnati, “we will follow the Supreme

Court’s example in Metromedia ... and consider

separately the effect of the codes on commercial and

noncommercial speech”).

The Fourth Circuit rejected a vagueness chal-

lenge by holding the commercial-noncommercial dis-

tinction should be made under the “Economic

Interests” Approach. Major Media of the Southeast v.

City of Raleigh, 792 F.2d 1269, 1273 (CA4 1986) citing

Central Hudson, 447 U.S. 557, 561.

The Seventh Circuit rejected a vagueness chal-

lenge by inventing its own “Fundamental Purpose”

Approach. Lavey v. City of Two Rivers, 171 F.3d 1110,

1116 (CA7 1999) (defining “paradigmatic commercial

speech” as speech with a “fundamental purpose” to

“propose an economic transaction”) citing Commodity

Trend Serv., Inc. v. CFTC, 149 F.3d 679, 684 (CA7

1998).

The Tenth Circuit rejected a vagueness challenge

by holding the commercial-noncommercial distinction

should be made under the “Multi-Factor” Approach.

National Advertising Co. v. City and County of

Denver, 912 F.2d 405, 410 (CA10 1990) citing Bolger,

463 US. 60, 66.

The California Supreme Court, on remand in

Metromedia, declined to judicially reform or sever the

San Diego ordinance so as to prohibit only offsite

commercial speech because doing so “would compel

the city to distinguish between commercial and non-

commercial speech, a task rife with constitutional

enigmas....” Metromedia, Inc. v. City of San Diego,

32 Cal.3d 180, 183 (1982); see also, id. at 190 (“Such

an ordinance ... would require the city to police the

content of advertising messages, and would compel

it to distinguish commercial from noncommercial

speech — an extremely difficult task, and one which

presents serious constitutional problems.”) citing

Metromedia, 453 U.S. 490, 536-540 (Brennan, J.,

concurring in judgment).

California’s intermediate appellate courts sub-

sequently adopted the Fourth Circuit’s “Economic

Interests” Approach, holding “that there is now

enough judicial guidance in this area that practical

application of the distinction will not be unduly

burdensome.” City and County of San Francisco uv.

Eller Outdoor Advertising, 192 Cal.App.3d 643, 665

(1987) citing City of Salinas v. Ryan Outdoor Adver-

tising, 189 Cal.App.3d 416, 429-430 (1987) following

Major Media, 792 F.3d 1269, 1273.

But the California Supreme Court has_ sub-

sequently invented its own “Who is Speaking?”

Approach for making the commercial-noncommercial

distinction which “requires consideration of three

elements: the speaker, the intended audience, and the

content of the message.” Nike, 27 Cal.4th 939, 960

(describing it as a “limited-purpose test” to be used

“when a court must decide whether particular speech

may be subjected to laws aimed at preventing false

advertising or other forms of commercial deception”)

(emphasis in original).

The California Supreme Court purported to

base its new test on Bolger (1.e., the “Multi-Factor”

Approach). Nike, 27 Cal.4th 939, 960-962; see also, id.

at 957 (observing Bolger “not only rejected the notion

that any of these factors is sufficient by itself, but it

also declined to hold that all of these factors in

combination, or any one of them individually, is

necessary to support a commercial speech charac-

terization”) (emphasis in original).

Nike is binding in state court. U.D. Registry, Inc.

v. State, 144 Cal.App.4th 405, 420 (2006) (holding

“the bright line rule — that commercial speech is only

that which proposes a commercial transaction” has

been “superseded by subsequent authority” and that

the “controlling discussion in this regard is the

analysis of our Supreme Court in Nike... .”); see also,

People v. Crittenden, 9 Cal.4th 83, 120, n. 3 (1994)

(“we are not bound by decisions of the lower federal

courts, even on federal questions”) and Auto Equity

Sales v. Superior Court, 57 Cal.2d 450, 455 (1962)

(California Supreme Court decisions “are binding

upon and must be followed by all the state courts of

California”).

Thus, Maldonado is subject to both the California

and Ninth Circuit approaches, depending upon

whether an action is filed in state or federal court.

D. Summary

The lack of a settled standard for making the

commercial-noncommercial distinction, criticism by

members of this Court, and splits among the circuits

and California Supreme Court provide compelling

reasons for this Court to grant review.

Embraced within this issue is whether there

should be a commercial-noncommercial distinction at

all. On the merits, petitioner will argue that there is

no textual or historical basis for the commercial-

noncommercial distinction and that all of the

approaches articulated to date are too vague,

everbroad, or arbitrary. But if any of said approaches

must be adopted, then it should be the “Common

Sense” Approach.

Il. THIS COURT SHOULD REVIEW WHETHER

THE COMMERCIAL-NONCOMMERCIAL DIS-

TINCTION iS OVERBROAD AND CONTENT-

BASED

Review of the following issue is warranted

because the Ninth Circuit has decided an important

question of federal law in a way that conflicts with

relevant decisions of this Court, and in a way that

conflicts with other circuits. Rules 10(c) and (a).

A. The Supreme Court Rules

In Cincinnati this Court reviewed an ordinance

that generally banned commercial newsracks, but

exempted noncommercial newsracks. Cincinnati, 507

U.S. 410, 414, n. 2 and 3. This Court assumed

arguendo that the ban only applied to “core” com-

mercial speech, and therefore analyzed the ban under

the Central Hudson test. Jd. at 424. But in response

to the dissent of Chief Justice Rehnquist, this Court

explicitly held that its prior decision in Metromedia

did not control the case before it:

THE CHIEF JUSTICE is correct that seven

Justices in the Metromedia case were of the

view that San Diego could completely ban

offsite commercial billboards for reasons un-

related to the content of those billboards.

Those seven Justices did not say, however,

that San Diego could distinguish between

commercial and noncommercial offsite

billboards that cause tiie same esthetic and

safety concerns. That question was not

presented in Metromedia, for the regulation

at issue in that case did not draw a

distinction between commercial and noncom-

mercial offsite billboards; with a few excep-

tions, it essentially banned all offsite

billboards.”

Cincinnati, 507 U.S. 410, 425, n. 20 (emphasis in

original).

As a matter of first impression, this Court struck

down the law because there was no “reasonable fit”

between the restriction and the government’s aesthetic

and safety interests; the commercial-noncommercial

nature of the publications displayed within the

newsracks had nothing whatsoever to do with aes-

thetics or safety. Cincinnati at 425-428.

Importantly, this Court also held that the law did

not qualify as a “time, place, and manner” restriction

because the distinction was content-based. Cincinnati

at 428-431; esp. id. at 429 (since “the very basis for

the regulation is the difference in content between

ordinary newspapers and commercial speech” and

because “whether any particular newsrack falls with-

in the ban is determined by the content of the pub-

lication resting inside that newsrack” therefore “by

any commonsense understanding of the term, the ban

in this case is ‘content-based.’ ”).

B. The Ninth Circuit Rules

The first Ninth Circuit case to apply Cincinnati

ignored footnote 20 of the opinion and errantly relied

on Metromedia to hold that there was a “reasonable

fit” between a law that generally banned commercial

billboards, but exempted noncommercial billboards.

Mesa, 997 F.2d 604, 611 (“Like the ordinance in

Metromedia, which a majority of Justices concluded

easily met this criterion, the sign codes here go ‘no

further than necessary’ in seeking to accomplish the

cities’ goals.”)

Then, in a further legal blunder, the Ninth

Circuit ruled that any restrictions upon noncom-

mercial speech should be analyzed as a “time, place,

and manner” restriction because “[t|he sign codes are

content neutral.” Mesa at 612.

Subsequent Ninth Circuit cases have followed

Mesa. Ackerley Communications of the Northwest Inc.

v. Krochalis, 108 F.3d 1095, 1098 (CA9 1997); Clear

Channel, 340 F.3d 810, 813-816; Beaumont, 506 F.3d

895, 905; Metro Lights, L.L.C. v. City of Los Angeles,

551 F.3d 898, 911-914 (2009); and Maldonado IV, 556

F.3d 1037, 1046-1048 citing Metro Lights at 912, 914.

Here, the erroneous law of the circuit foreclosed

petitioner from arguing the Act was overbroad (i.e.,

not a “reasonable fit”) under Central Hudson.

Moreover, the erroneous precedent deeming

commercial-noncommercial distinctions as “content-

neutral” doomed petitioner’s prior restraint and equal

protection arguments because the panel applied the

wrong level of scrutiny. Maldonado IV, 556 F.3d 1047-

1048 reviewing the state court injunction under

Madsen v. Women’s Health Center, Inc., 512 U.S. 753,

763-770 (1994) and equal protection argument under

a Ninth Circuit case citing Turner Broadcasting

System, Inc. v. FCC, 512 U.S. 622, 655 (1994).

The largest circuit in the nation has adopted the

wrong legal standards to apply in commercial speech

cases brought under equal protection and prior re-

straint theories.

Equal protection precedent requires strict scru-

tiny of laws which discriminate based upon subject-

matter or speaker identity.’ Arkansas Writers’ Project,

Inc. v. Ragland, 481 U.S. 221, 228-231 (1987) (tax

exemption for periodicals based upon subject-matter);

Carey v. Brown, 447 U.S. 455, 459-463 (1980) (pick-

eting ban exempting labor picketing); accord, Ackerley

Communications of Massachusetts, Inc. v. City of

Cambridge, 88 F.3d 33 (CA1 1996) (billboards “grand-

fathered” based upon subject-matter of prior dis-

plays).

The Turner standard is not applicable because

this Court was careful to point out that it used the

“intermediate” scrutiny test because the law was

“content-neutral.” Jd. at 643-655. Moreover, there was

an “important technological difference” between cable

television and other media. Turner at 656.

Meanwhile, prior restraint precedent establishes

that state nuisance statutes (and injunctions based

thereon) which restrain even “unprotected” cate-

gories of speech prior to publication are subject to

strict scrutiny; the government may not declare

' Even as to “unprotected” categories of speech, sub-classes

may not be created unless “the content discrimination consists

entirely of the very reason the entire class of speech at issue is

proscribable.” R.A.V. vu. City of St. Paul, Minn., 505 U.S. 377,

388-389 (1992) (e.g., a sub-class of commercial speech could be

regulated differently if there were a greater “risk of fraud.”).

* California injunctions may be collaterally attacked. Jn re

Berry, 68 Cal.2d 137, 147 (1968).

certain categories of speech to be a nuisance per se

and then restrain future publications by way of an

injunction enforced by the judicial contempt power.

Near v. Minnesota, 283 U.S. 697, 711-715 (1931)

(defamatory speech) and Vance v. Universal Amuse-

ment Co., Inc., 445 U.S. 308, 315-317 (1980) (obscene

speech).

The Madsen standard is not applicable because it

only applies to “content-neutral” injunctions. Madsen,

512 U.S. 753, 762-775. Madsen is also distinguishable

because it enjoined “expressive conduct” such as

blocking ingress and egress to, and shouting near,

medical clinics. Jd. at 769 and 772-773.

However, to the extent Madsen cannot be dis-

tinguished, it should be overruled for the reasons

stated in the dissent. Madsen at 784-815 (Scalia, J.,

concurring in the judgment in part and dissenting in

part, joined by Kennedy and Thomas, J..J.).

The aptly described “intermediate-intermediate”

scrutiny is supposedly “somewhat more stringent”

than regular intermediate scrutiny in that the stan-

dard “requires that the restriction ‘burden no more

speech than necessary to serve a significant govern-

ment interest.’” Madsen, 512 U.S. 753, 791 (dissent).

However, here the malleable standard failed to

eliminate the very same distinction that this Court

previously struck down under the Central Hudson

test.

Indeed, “(t]he proposition that injunctions against

speech are subject to a standard indistinguishable

from (unless perhaps more lenient in its application

than) the ‘intermediate scrutiny standard ... used

for ‘time, place, and manner’ legislative restrictions”

was a dangerous idea to legitimize. Madsen at 815

(dissent). Moreover, it has proven an expedient way

for judges to silence unpopular speakers such as abor-

tion protesters and billboard owners.

The Ninth Circuit erred by expanding Madsen

beyond its facts, and it is wrong to subject Maldonado

to prior restraint simply because he was previously

adjudicated to have published messages which vio-

lated the old (unconstitutional) version of the Act.

C. Other Circuits

Contrary to the Ninth Circuit, and in light of

footnote 20 of the Cincinnati case, the Seventh

Circuit has held that Metromedia “is not dispositive”

as to whether the commercial-noncommercial distinc-

tion reasonably fits aesthetic and safety concerns.

Lavey v. City of Two Rivers, 171 F.3d 1110, 1113-1115

and n. 16. However, the Seventh Circuit did not

decide the underinclusivity issue itself. /d. at 1116

(issue forfeited).

The Third Circuit has also held that Metromedia

is not binding, but did so because it was “unable to

derive a governing standard from the _ splintered

opinions.” Rappa v. New Castle County, 18 F.3d 1043,

1053-1061 (CA3 1994); and id. at 1079 (Alito, J.,

concurring). The lead opinion by Judge Becker

questioned the continued validity of the portion of the

plurality opinion in Metromedia that suggested

“content-based distinctions within the category of

commercial speech were permissible.” Jd. at 1055-

1056 and n. 20 citing Cincinnati; and id. at 1065, n. 35

(same). The Court then invented and applied a new

“Significantly Related to Locality” test. Jd. at 1062-

1068.

Although Judge Alito concurred in the judgment

and opinion because he thought it was “important for

the panel to agree on a judgment and rationale,” he

actually preferred “a method of analysis somewhat

different. ...” Id. at 1079. In his view, the law swept

too “broadly and indiscriminately” and could not even

pass the narrow tailoring requirement of the “time,

place, and manner” test. Jd. at 1080 (noting that the

law “generally prohibits signs on all property within

25 feet of the right of way of all portions of every state

highway,” except in incorporated and otherwise

“controlled” areas.).

The Eleventh Circuit agrees that Metromedia is

not binding, but has adopted its reasoning. Solantic,

LLC v. City of Neptune Beach, 410 F.3d 1250, 1261-

1262, n. 10 (CA11 2005).

Ill. THIS COURT SHOULD REVIEW WHETHER

THE GOVERNMENT MUST PROVE, BY

SUBSTANTIAL EVIDENCE, THAT COM-

MERCIAL SPEECH RESTRICTIONS MATE-

RIALLY ADVANCE ITS AESTHETIC AND

TRAFFIC SAFETY INTERESTS BOTH IN

THE AGGREGATE AND AS-APPLIED

Review of the following issue is warranted be-

cause the Ninth Circuit has decided an important

question of federal law in a way that conflicts with

relevant decisions of this Court, and in a way that

conflicts with another circuit. Rules 10(c) and (a).

A. The Supreme Court and Sixth Circuit

In 1993, this Court refined prong three of the

Central Hudson test which asks whether a restriction

affecting commercial speech is effective (i.e., “directly

advances” the government interest identified in prong

two of the test). This Court adopted the “material

advancement” test, and rejected the notion that effec-

tiveness could be judged in the abstract. Edenfield v.

Fane, 507 U.S. 761, 770-773 (1993) (the government’s

burden is “not satisfied by mere speculation or con-

jecture; rather, a governmental body seeking to sus-

tain a_ restriction on commercial speech must

demonstrate that the harms it recites are real and

that its restriction will in fact alleviate them to a

material degree”).

Later, this Court stated, “It is readily apparent

that this question cannot be answered by limiting the

inquiry to whether the governmental interest is

directly advanced as applied to a single person or

entity.” U.S. v. Edge Broadcasting Co., 509 U.S. 418,

427 (1993). However, that point was overruled sub-

silentio when this Court held that the same provision

of law could “not be applied” in a different context.

Greater New Orleans, 527 U.S. 173, 176; and id. at

188-189 (quoting Hdenfteld at 770-771 and con-

cluding, “As applied to petitioners’ case, § 1304 can-

not satisfy [the Edenfield| standards.”).

The Edenfield refinement has been followed in

Rubin v. Coors Brewing Co., 514 U.S. 476, 487-490

(1995) (prong three is “critical” for policy reasons,

exemptions undermine effectiveness, and “anecdotal

evidence and educated guesses” are insufficient); 44

Liquormart, 517 U.S. 484, 516 (concluding state

“failed to carry its heavy burden of justifying its

complete ban on price advertising”) (emphasis added);

Greater New Orleans, 527 U.S. 173, 190 (legislation

deemed ineffective because it was “so pierced with

exemptions and _ inconsistencies”); and Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 557-561 (2001)

(dicta) (extensive studies on tobacco use by minors

indicated targeted advertising bans would be effective

to curtail use of chewing tobacco and cigars among

minors) and id. at 566 (5 ft. height restriction on

chewing tobacco and cigar advertising was ineffective

because children could simply “look up”).

The Edenfield refinement is binding because

inferior courts are generally bound not only by the

holdings of the Supreme Court, but also by their

“mode of analysis.” Scalia, The Rule of Law as a Law

of Rules, 56 U. Chi. L.Rev. 1175, 1177 (1989); accord,

Miller v. Gammie, 335 F.3d 889, 900 (CA9 2003)

(en banc). Thus, when this Court deliberately re-

considers and announces a change in its mode of

analysis, that change is generally binding on inferior

courts, even if the opinion does not expressly identify

and disapprove of every prior case utilizing the old

mode of analysis. Olsen v. Nebraska, 313 U.S. 236,

244-245 (1941) (holding Nebraska Supreme Court

erred when it followed an earlier opinion because

later cases represented “more than scattered ex-

amples” of exceptions to the old rule; they repre-

sented “a basic departure from the philosophy and

approach” of the earlier cases).

The Sixth Circuit recognized as much in a case

involving automobile “for sale” signs. Pagan ov.

Fruchey, 492 F.3d 766, 775, n. 8 (CA6 2007) (en banc)

(“Finally, even assuming Metromedia is applicable to

this case, Edenfield — coming more than a decade

later — must be read as a refinement of the Central

Hudson framework relied upon in Metromedia. Eden-

field, not Metromedia, requires the result here.”)

B. The Ninth Circuit

The Ninth Circuit has adopted the “material

advancement” refinement in non-billboard contexts.

Ballen v. City of Redmond, 466 F.3d 736, 744 (CA9

2006) (portable sandwich board signs).

But in billboard cases, the Ninth Circuit has

expressly rejected the argument that this Court “has

imposed a greater evidentiary burden on a [govern-

ment entity] trying to justify a restriction on com-

mercial speech.” Krochalis, 108 F.3d 1095, 1097-1098;

id. at 1099 (“we hold that Metromedia continues to

control the regulation of billboards”); and id. at 1099-

1100 (“As a matter of law Seattle’s ordinance... isa

constitutional restriction on commercial speech

without detailed proof that the billboard regulation

will in fact advance the city’s interests.”) (emphasis

added).

Mesa and Krochalis have been followed in

subsequent Ninth Circuit cases. Clear Channel, 340

F.3d 810, 814-815 and id. at 816 (“under Metromedia,

the City need only show that the goal of bringing

offsite signs into greater compliance with building

codes is itself legitimate”); Metro Lights, 551 F.3d 898,

904; and Maldonado IV, 556 F.3d 1037, 1046, n. 3

(“The basis for the sign ban relates to signs in the

aggregate, not Maldonado’s billboard in particular.”).

Invoking another laudable rule of stare decisis

(i.e., that only this Court has “the prerogative of

overruling its own decisions”), the Ninth Circuit has

purported to distinguish billboard cases by parroting

the “talismanic phrase” that billboard law is “a law

* Times Film Corp. v. City of Chicago, 365 U.S. 43, 75-76

(1961) (Warren, C.J., dissenting) (criticizing the majority for

invoking “a talismanic phrase” that “in no way, explains why

moving pictures should be treated differently than any other

(Continued on following page)

unto itself” and that “Metromedia remains the lead-

ing decision in the field.” Mesa, 997 F.2d 604, 610

quoting Metromedia, 453 U.S. 490, 501; see also,

Krochalis at 1099 (accord, quoting Rodriguez de

Quijas v. Shearson/American Exp., Inc., 490 U.S. 477,

484 (1989) and Metro Lights, 551 F.3d 898, 911 (re-

fusing to follow Greater New Orleans for same rea-

son).

The problem with the Ninth Circuit’s analysis is

that it fails to acknowledge that this Court has

“exercised its prerogative” to both explicitly alter its

mode of analysis, and to explicitly distinguish the

Metromedia case. See discussion (above), Part II,

Sections A and C discussing footnote 20 of Cincinnati

and holdings of other circuits that Metromedia does

not constitute binding authority.

CONCLUSION

The time has come to bid farewell to the Com-

mercial Speech Doctrine — or at least to settle on a

workable approach.

Government has a legitimate interest in regu-

lating the size and location of permanent sign

structures, but the First Amendment prohibits (or at

form of expression” and “why moving pictures should be denied

the protection against censorship — ‘a form of infringement upon

freedom of expression to be especially condemned’ ”).

least should prohibit) government from censoring

what messages are displayed on those structures.

The constitutional enumeration of the Freedoms

of Speech and Press means that the power to decide

what messages are appropriate for publication has

been reserved to the People.

Respectfully submitted,

DENNIS SCOTT ZELL

FOGARTY & ZELL, LLP

198 Taylor Boulevard

Millbrae, California 94010

(650) 652-5601

Attorney for Petitioner

September 22, 2009

App. 1

556 F.3d 1037

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NANO MALDONADO,

Plaintiff-Appellant,

¥.

——as

JEFF MORALES, in his capacity

as Director of the California

Department of Transportation,

Defendant,

and

No. 06-15657

D.C. No.

CV-02-03167-CRB

WILL KEMPTON, in his capacity

as Director of the California

Department of Transportation,

Defendant-Appellee.

NANO MALDONADO,

Plaintiff-Appellant,

No. 07-15535

D.C. No.

WILL KEMPTON, in his capacity CV-02-03167-CRB

as Director of the California

Department of Transportation, OPINION

Defendant-Appellee. |

App. 2

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

August 13, 2008 — San Francisco, California

Filed February 25, 2009

Before: Eugene E. Siler, Jr.,¥ M. Margaret McKeown,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge McKeown

COUNSEL

Dennis Scott Zell, Fogarty & Zell, LLP, Millbrae,

California, for the plaintiff-appellant.

Ronald W. Beals, Assistant Chief Counsel, California

Department of ‘Transportation Legal Division,

Sacramento, California, for the defendant-appellee.

Michael F. Wright, Case Knowlson, Jordan & Wright,

LLP, Los Angeles, California, for the amicus.

OPINION

McKEOWN, Circuit Judge:

Nano Maldonado has raised a number of con-

stitutional challenges to the California Outdoor

* The Honorable Eugene E. Siler, Jr., Senior United States

Circuit Judge for the Sixth Circuit, sitting by designation.

App. 3

Advertising Act. Cal. Bus. & Prof. Code § 5200, et seq.

As a consequence of a legislative amendment in 2008,

the Act bars offsite commercial advertising but does

not restrict non-commercial speech. Cal. Bus. & Prof.

Code § 5275. Although some of Maldonado’s claims

are now moot because of this amendment, he con-

tinues to challenge application of the Act to his effort

to display off-premises advertising on a highway

billboard. This appeal is Maldonado’s second trip to

our court and requires us, once again, to reiterate our

commercial speech jurisprudence involving bill-

boards. We dismiss as moot Maldonado’s appeal from

the district court’s injunction and affirm the district

court’s grant of summary judgment on his other

claims.

Z: BACKGROUND

Maldonado has had a long-running dispute

with the California Department of Transportation

(“Caltrans”) over the use of a billboard on his

property. In the early 1990s, he purchased property in

Redwood City, California, that is adjacent to U.S.

Highway 101. This land is in an area of Highway 101

that has been classified as “landscaped freeway.” In

1993, Maldonado applied to Caltrans for a permit to

use his billboard for offsite advertising. Because

California’s Outdoor Advertising Act (““COAA”) bars

property owners from using billboards along a

landscaped freeway to advertise for offsite businesses,

Caltrans denied the application. See Cal. Bus. & Prof.

Code §§ 5440, 5442. Maldonado’s efforts to skirt the

App. 4

offsite advertising ban have resulted in lengthy

litigation at the state and federal level over the last

ten years.

After Maldonado continued using the billboard

for offsite advertising despite numerous citations,

Caltrans sued him in California state court for

nuisance. See People v. Maldonado, 86 Cal. App. 4th

1225, 1228-29 (Cal. Ct. App. 2001). The state court

trial judge found in favor of Caltrans and enjoined

Maldonado from continuing to violate the COAA. Id.

at 1229-30. The injunction barred Maldonado from:

(1) “posting or displaying any advertising on his bill-

board without first having obtained from [Caltrans]

either a permit for outdoor advertising, or an

exemption from or waiver of the permit requirement;”

(2) “posting or displaying any on premise advertising

which does not direct the viewer to the billboard

location for purposes of conducting business;” (3)

“posting or displaying any on premise advertising for

activities not conducted on [his] premises;” and (4)

“posting or displaying any on premise advertising for

products or services which are only incidental or

secondary to the principal business activity conduct

on [his] premises.” Jd. at 1233-35 (internal quotations

and citations omitted). The state court of appeals

upheld all but the first of these prohibitions. Jd.

Despite the injunction, Maldonado persisted in

using his billboard for offsite advertising and was

twice cited for contempt. He then sued in federal

court, alleging the COAA violated the First Amend-

ment, both facially and as applied to him. The district

App. 5

court dismissed the case on procedural grounds. We

reversed that dismissal. See Maldonado v. Harris

(“Maldonado IT”), 370 F.3d 945, 956 (9th Cir. 2004).

On remand, the district court held that the COAA

unconstitutionally privileged commercial speech over

non-commercial speech because it permitted onsite

commercial speech but barred onsite non-commercial

speech. Maldonado v. Kempton (“Maldonado III”),

422 F. Supp. 2d 1169, 1178 (N.D. Cal. 2006). The

district court enjoined enforcement of the COAA

against non-commercial speech on billboards where

onsite advertising is allowed. Jd. at 1178. The district

court later found that the COAA, as amended by the

injunction, is constitutional and granted summary

judgment against Maldonado on his other claims.

Maldonado now challenges the district court’s

injunction and summary judgment ruling. He argues

that the district court’s injunction was not an

appropriate remedy for the statute’s unconstitutional

preference for commercial speech. He claims that the

COAA is overbroad and vague, that it imposes

unconstitutional prior restraints on speech, that it

violates equal protection, and that it violates sub-

stantive due process. He also claims that the state

court injunction barring him from violating the COAA

imposes a separate unconstitutional restraint on his

First Amendment rights.

App. 6

II. ANALYSIS

A. JURISDICTION

Before addressing Maldonado’s_ substantive

claims, we first resolve three threshold issues:

whether the amendment to the COAA moots

Maldonado’s claims, whether he has standing to raise

his claims, and whether his claims about the criminal

enforcement provisions are ripe. See Kescoli v.

Babbitt, 101 F.3d 1304, 1308 (9th Cir. 1996) (“If the

appeal is moot, we lack jurisdiction.”); Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83, 88-89

(1998) (standing is a jurisdictional question that

ordinarily must be resolved before addressing the

merits); Texas v. United States, 523 U.S. 296, 301-302

(1998) (courts should not reach the merits of unripe

issues).

1. Mootness

On January 1, 2008, after the district court’s

injunction and after the two appeals consolidated

in this case were filed, the California legislature

amended the COAA. The new section, § 5275, reads:

Notwithstanding any other provision of this

chapter, the director may not regulate non-

commercial, protected speech contained

within any advertising display authorized by,

or exempted from, this chapter.

Cal. Bus. & Prof. Code § 5275.

App. 7

With this amendment, the COAA now exempts

non-commercial speech from regulation by Caltrans.

The question then is whether this statutory change

moots Maldonado’s appeal. Mootness is “‘the doctrine

of standing set in a time frame.’” Abdala v. I.N.S.,

488 F.3d 1061, 1063 (9th Cir. 2007) (quoting Friends

of the Earth, Inc. v. Laidlaw Envtl. Servus., Inc., 528

U.S. 167, 189 (2000)). “A statutory change ... is

usually enough to render a case moot, even if the

legislature possesses the power to reenact the statute

after the lawsuit is dismissed.” Native Village of

Noatak v, Blatchford, 38 F.3d 1505, 1510 (9th Cir.

1994).

Before enactment of this new provision, the

district court held that the COAA impermissibly

favored commercial over non-commercial speech,

because it provided an exception only for onsite

commercial advertising and not for non-commercial

messages. The district court remedied this constitu-

tional infirmity by enjoining Caltrans from enforcing

the COAA against non-commercial speech: “the Court

will enjoin the State from enforcing COAA to prohibit

non-commercial speech wherever the Act permits

commercial speech.” Maldonado III, 422 F. Supp. 2d

at 1178.

Section 5275 incorporates the same solution to

the constitutional problem that the district court

implemented via the injunction, specifically carving

out non-commercial speech from regulation. Cal. Bus.

Prof. Code § 5275. Now that the statute has been

amended te exempt non-commercial speech, the

App. 8

injunction is moot.’ See Railway Labor Executives’

Ass’n v. Gibbons, 455 U.S. 457, 465 n.8 (1982) (noting

that the amendment of a law removing sections

declared unconstitutional by a district court mooted

that court’s injunction).

Despite the changes to the COAA, Maldonado

argues that because Caltrans stated that it will not

change its enforcement policy, his claims are not

moot. However, what Caltrans actually said is that it

never enforced the COAA against non-commercial

speech, even when the text of the law permitted it to

do so. This statement was not a threat to flout the

new law, but rather a promise to follow it.

Four of Maldonado’s claims against the COAA

were predicated on the COAA as reformed by the

district court: (1) the COAA is overbroad and vague;

(2) the COAA is enforced via unconstitutional prior

restraints; (3) the grandfathering provision violates

equal protection; and (4) the COAA violates the

suppression doctrine and substantive due process.

These claims do not depend on the lack of statutory

exception for non-commercial speech and thus remain

live controversies.

Maldonado’s claim that the state court injunction

bars him from exercising his First Amendment Rights

' Maldonado’s dispute over the injunction centers on the

multiple claims relating to the district court’s allegedly improper

reformation of the statute, and claimed failure to comply with

Federal Rule of Civil Procedure 65(d).

App. 9

is also unaffected by the changes to the COAA.

Although the purpose of that injunction was to bar

Maldonado from continued violation of the COAA, the

language of the injunction bars him from engaging in

offsite advertising on his billboard, not simply from

violating the COAA. Therefore, the change to the

COAA itself has no effect on this aspect of the state

court injunction. This claim is addressed below in our

analysis of prior restraint.

2. Standing

We next address Caltrans arguments that

Maldonado lacks standing to pursue his claims.

Caltrans posits that because a Redwood City ordi-

nance also includes billboard restrictions, some of

Maldonado’s claims are not redressable. See Redwood

City Sign Ordinance § 3.114 (2000) (amended 2007)

(prohibiting offsite advertising subject to enumerated

exceptions such as community activity signs, open

house signs, garage sale signs, political signs and

public event signs).’ Caltrans argues that even if

Maldonado were to prevail on his constitutional

claims, the city ordinance would still prohibit

Maldonado’s advertising, hence obtaining relief in

this court would be fruitless.

In its brief, Caltrans cited to the statute enacted in 2000

but later submitted a letter alerting the court to a statutory

change that clearly exempted non-commercial messages. The

amended version of the statute is codified at Redwood City Code

§§ 3.57-3.61, 3.71-3.72.

App. 10

Caltrans’s argument might have merit if the

Redwood City prohibitions were clearly identifiable,

enforceable, and distinct from the federal challenge to

the amended COAA. The Seventh Circuit considered

such a circumstance in Harp Advertising Illinois, Inc.

v. Village of Chicago Ridge, 9 F.3d 1290 (7th Cir.

1993). As we explained in a later case analyzing

Harp, “‘{ajn injunction against the portions of the

sign and zoning codes that [Harp] has challenged

li.e., the off-site sign ban] would not let it erect the

proposed sign; the village could block the sign simply

by enforcing another, valid ordinance [i.e., the size

and height restrictions] already on the books.’” Get

Outdoors II, L.L.C. v. City of San Diego, 506 F.3d 886,

893 (9th Cir. 2007) (quoting Harp, 9 F.3d at 1292)

(alterations in original) (emphasis added).

When evaluating redressability, the key question

is whether the harm alleged by the plaintiff is likely

to be alleviated by a ruling in its favor. See Harp, 9

F.3d at 1292 (“Law like life deals in probabilities. A

rule reducing the probability of success causes a

concrete injury for the same reason that an... option

to buy stock sells at a positive price.”). Maldonado’s

constitutional challenge to the COAA applies with

equal force to the similarly-worded Redwood City

ordinance, which also bans offsite commercial adver-

tising. Although the Redwood City ordinance might

present another obstacle in Maldonado’s path were he

to prevail in this litigation, it is one that a favorable

ruling here would likely allow him to surmount.

Therefore, the Redwood City Ordinance dves not

App. 11

defeat Maldonado’s standing to challenge the

constitutionality of the COAA.

Caltrans also questions Maldonado’s standing to

challenge the COAA provisions that were not applied

to him, such as COAA’s grandfathering provision,

which exempted pre-existing offsite advertisements

from the Act. Although plaintiffs are generally limited

to enforcing their own rights, standing is broader for

facial First Amendment challenges. We have long

held that plaintiffs have standing to challenge

exceptions as underinclusive when the exception does

not apply to the plaintiff. See Ripplinger v. Collins,

868 F.2d 1043, 1048 (9th Cir. 1989) (“Plaintiffs ...

have standing to claim a constitutional violation

because others similarly situated are exempt from the

operation of a state law adversely affecting the

plaintiffs.”). Similarly, a plaintiff alleging that a stat-

ute is void for vagueness and overbreadth resulting in

a chilling effect on speech has standing even if the

law is constitutional as applied to him. See S.O.C.,

Inc. v. County of Clark, 152 F.3d 1136, 1142-43 (9th

Cir. 1998). These principles are sufficiently broad to

grant Maldonado standing on his First Amendment

and equal protection claims.

3. Ripeness

Finally, Caltrans insists that because Maldonado

has not actually been prosecuted, his complaint about

the criminal provisions of the COAA, Cal. Bus. &

Prof. Code § 5464, is purely hypothetica! and should

App. 12

not be addressed by this court. Although cast by

Caltrans as a standing issue, this challenge fits more

neatly intc the ripeness category. Ripeness is

intended to “prevent the courts, through avoidance of

premature adjudication, from entangling themselves

in abstract disagreements.” Abbott Labs. v. Gardner,

387 U.S. 136, 148 (1967), overruled on other grounds

by Califano v. Sanders, 430 U.S. 99 (1977). The role of

the courts is “neither to issue advisory opinions nor to

declare rights in hypothetical cases, but to adjudicate

live cases or controversies.” Thomas v. Anchorage

Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir.

2000) (en banc).

Ripeness is both a constitutional and a pru-

dential doctrine. Portman v. County of Santa Clara,

995 F.2d 898, 902 (9th Cir. 1993). Under the

constitutional inquiry, we look to a three-part test: (1)

whether the plaintiff has articulated a concrete plan

to violate the Jaw in question; (2) whether there has

been a threat of prosecution from the state; and (3)

whether the statute at issue has previously been

enforced. Thomas, 220 F.3d at 1138-39. In other

words, a “genuine threat of enforcement” is sufficient

to render a claim ripe for review. City of Houston uv.

Hill, 482 U.S. 451, 459 n.7 (1987) (citing Steffel v.

Thompson, 415 U.S. 452, 475 (1974)). The prudential

inquiry weighs “the fitness of the issue for judicial

decision and the hardship to the parties of with-

holding court consideration.” Abbott Labs., 387 U.S

at 149.

App. 13

The last time Maldonado came before this court,

invoking the framework described above, we held

that his claims were ripe. Applying the test for

constitutional ripeness, we held:

Maldonado’s suit fares well as far as the first

and third factors are concerned: Maldonado

alleges that his current conduct is in

violation of COAA, and Caltrans has

undoubtedly enforced the statute against

Maldonado in the past. Although the second

factor is a closer question, it also tends to

favor Maldonado: while there may not have

been specific threats of enforcement against

his current signs, the fact that an injunction

had been entered against Maldonado

certainly qualifies as a threat of enforce-

ment. We therefore conclude that

Maldonado’s First Amendment challenge

meets the constitutional component of

ripeness.

Maldonado II, 370 F.3d at 953-54 (footnote omitted).

As for prudential ripeness, we held:

Maldonado’s suit meets the first prong

because there has been no contention that

the record needs to be developed further in

order for the district court to be able to

address the constitutional challenge. ... The

second factor also weighs in favor of

Maldonado because withholding considera-

tion of his claims will require him to risk

being found in contempt of the state court

injunction in order to be able to challenge the

constitutionality of the statute.

App. 14

Id. at 954. Caltrans offers nothing to change our

analysis in this appeal. Maldonado appears locked in

a continuing battle with the state over this billboard.

The result is not hypothetical. Instead, there is a

continuing cycle of contempt citations, litigation and

appeals.

B. OVERBREADTH AND VAGUENESS

1. Criminal Enforcement

Maldonado challenges the constitutionality of the

COAA provisions that punish violations of the ban on

offsite advertising as misdemeanor criminal offenses.

See Cal. Bus. & Prof. Code § 5464. Maldonado’s

overbreadth claim is linked to his vagueness claim.

In effect, he argues that the distinction between

commercial and non-commercial speech is vague and

therefore fails to give sufficient notice of the

prohibited conduct and chills protected speech.

Maldonado alleges the statute is overbroad because

the vagueness of this distinction will result in some

non-commercial speech being subjected to the COAA.

To be sure, courts must take extra care in

determining whether criminal statutes are vague or

“reach[] a substantial amount of constitutionally

protected conduct” because of the heightened risk of

deterring people from engaging in constitutionally

protected conduct. City of Houston, 482 U.S. at 458.

Because of the nature of criminal sanctions, “[tJhe

standards of certainty in statutes punishing for

offenses is higher than in those depending primarily

App. 15

on civil sanction for enforcement.” Winters v. New

York, 333 U.S. 507, 515 (1948).

The standard for unconstitutional vagueness is

whether the statute “provide[s] a person of ordinary

intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages

seriously discriminatory enforcement.” United States

v. Williams, ___ U.S. ___, 128 S. Ct. 1830, 1845 (2008)

(citing Hill v. Colorado, 530 U.S. 703, 732 (2000)).

The settled law of this circuit is that the commercial/

non-commercial and onsite/offsite distinctions are not

unconstitutionally vague. Clear Channel Outdoor, Inc.

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

2003) (“We have relied on Metromedia to uphold sign

ordinances that distinguish between onsite and

offsite signs when that distinction does not also

prevent the erection of on-site non-commercial

signs.”) (citing Metromedia Inc. v. City of San Diego,

453 U.S. 490, 511-14 (1981)); Ackerley Communica-

tions of the Northwest, Inc. v. Krochalis, 108 F.3d

1095 (9th Cir. 1997) (upholding Seattle’s ban on

offsite commercial advertising on billboards); Outdoor

Systems, Inc. v. City of Mesa, 997 F.2d 604, 613 (9th

Cir. 1993) (“Because our First Amendment jurispru-

dence recognizes a distinction between commercial

and non-commercial speech, government officials

have to place a particular message into one or the

other category for purposes of regulation. The

potential difficulty of that categorization in itself does

not render the’ regulations unconstitutional.”).

Because the overbreadth and chilling effect claims

App. 16

are dependent on the statute’s alleged unconstitu-

tional vagueness, those claims also fail.

2. Suppression Doctrine

Maldonado claims that the COAA is a violation of

the “suppression doctrine.” Maldonado’s bnef lumped

this claim in with his substantive due process claim,’

but it is in fact a First Amendment claim premised on

City of Ladue v. Gilleo, 512 U.S. 43 (1994). In Ladue,

the Supreme Court held that a municipal ordinance

banning nearly all types of signs, although content-

neutral, was unconstitutional because it “sup-

press[ed] too much speech.” 7d. at 55. In essence, the

suppression doctrine is an overbreadth doctrine that

prevents highly restrictive yet content-neutral

limitations on speech from foreclosing or nearly

foreclosing an entire medium of expression:

[W]le have held invalid ordinances that

completely banned the distribution of pam-

phlets within the municipality, Lovell v. City

* Maldonado’s apparent substantive due process arguments,

namely that the state cannot validly prohibit offsite advertising

in urban areas, and “the government’s asserted aesthetic and

traffic safety interests” cannot overcome his liberty and property

interests, miss the mark. The basis for the sign ban relates to

signs in the aggregate, not to Maldonado’s billboard in

particular. See United States v. Edge Broadcasting Co., 509 U.S.

418, 427-28 (1993). Nor do our billboard cases create an urban

carve out. Rather we have consistently upheld bans in urban

areas, like Los Angeles. See, e.g., Metro Lights v. City of Los

Angeles, 551 F.3d 898, 914 (9th Cir. 2009).

App. 17

of Griffin, 303 U.S. 444, 451-452, 58 S. Ct.

666, 82 L. Ed. 949 (1938); handbills on the

public streets, Jamison v. Texas, 318 U.S.

413, 416, 63 S. Ct. 669, 87 L. Ed. 869 (1943);

the door-to-door distribution of literature,

Martin v. City of Struthers, 319 U.S. 141,

145-149, 63 S. Ct. 862, 87 L. Ed. 1313 (1943);

Schneider v. State (Town of Irvington), 308

U.S. 147, 164-165, 60 S. Ct. 146, 84 L. Ed.

155 (1939), and live entertainment, Schad uv.

Mount Ephraim, 452 U.S. 61, 75-76, 101

S.Ct. 2176, 68 L.Ed.2d 671 (1981)....

Although prohibitions foreclosing entire

media may be completely free of content or

viewpoint discrimination, the danger they

pose to the freedom of speech is readily

apparent — by eliminating a common means

of speaking, such measures can suppress too

much speech.

Id.

The COAA does not ban all signs, or even nearly

all signs, but only off premises, commercial bill-

boards. Maldonado remains free to post any non-

commercial messages or to post onsite advertising on

his billboard. This regulation is substantially less

restrictive than any the Supreme Court has struck

down under the suppression doctrine. We have

upheld similar restrictions in the past and did so just

last month. See, e.g., Metro Lights v. City of Los

Angeles, 551 F.3d 898, 914 (9th Cir. 2009). Therefore,

Maldonado’s suppression doctrine claim fails.

App. 18

C. PRIOR RESTRAINT

Under California law, violations of the COAA are

public nuisances that may be enjoined by the courts.

Cal. Bus. & Prof. Code § 5461. Maldonado argues that

the state court injunction barring him from contin-

uing to violate the COAA constitutes an unconsti-

tutional prior restraint on speech. The fact that the

COAA allows such prior restraints, he claims, renders

it unconstitutional.

That the statute allows injunctions against

speech does not itself render the COAA unconsti-

tutional — “[nJot all injunctions that may incidentally

affect expression ... are prior restraints.” Madsen uv.

Women’s Health Center, Inc., 512 U.S. 753, 763 n.2

(1994) (citations omitted). Content-neutral injunc-

tions that do not bar all avenues of expression are not

treated as prior restraints. Id.

The content-neutral injunction against Maldonado

is a pointed one — it bars him from violating the

COAA, namely posting offsite advertising on his

billboard. Maldonado, 86 Cal. App. 4th at 1234; see

also Metro Lights, 551 F.3d at 912 (holding that a

similar ordinance barring offsite commercial adver-

tising but permitting non-commercial and onsite

commercial advertising is “not by its terms a content-

based regulation”). The injunction does not limit his

onsite advertising. Nor does it bar him from posting

non-commercial messages. The injunction merely

means “he may not use his billboard to direct

travelers to businesses that are not located[on his

App. 19

premises].” Maldonado, 86 Cal. App. 4th at 1234-35.

In effect, the injunction does no more than provide

court-ordered compliance with the statute.

The fact that the restriction is not a prior

restraint does not end the inquiry. Injunctions are

subject to a higher level of scrutiny than generally

applicable laws:

There are obvious differences, however,

between an injunction and a_ generally

applicable ordinance. Ordinances represent a

legislative choice regarding the promotion of

particular societal interests. Injunctions, by

contrast, are remedies imposed for violations

(or threatened violations) of a legislative or

judicial decree.

Madsen, 512 U.S. at 764. Because of these differences

between injunctions and generally applicable ordi-

nances, the Supreme Court has counseled that “a

somewhat more stringent application of general First

Amendment principles” should be used to review

injunctions. /d. at 765.

In Madsen, the Court held that the appropriate

test for content-neutral injunctions was “whether the

challenged provisions of the injunction burden no

more speech than necessary to serve a significant

government interest.” Jd. at 765. Madsen involved

non-commercial speech by anti-abortion protestors,

whereas Maldonado has engaged in less protected

commercial speech. Whether Madsen’s stricter test

for evaluating an injunction applies equally to an

App. 20

injunction regulating commercial speech is a distinc-

tion not addressed by the Court. See generally Central

Hudson Gas & Elec. Corp. v. Public Serv. Comm’n,

447 U.S. 557, 562-63 (1980) (“The Constitution ...

accords a lesser protection to commercial speech than

to other constitutionally guaranteed expression.”)

(citations omitted). However, we need not reach that

issue because even under the Madsen test, the

injunction is constitutional.

California’s interest in improving aesthetics and

safety along its highways is significant. Metromedia,

453 U.S. at 511. Maldonado repeatedly violated the

ban on offsite advertising, prompting the state’s

efforts to enjoin him from further violations. The

injunction only bars Maldonado from engaging in

conduct that is itself illegal, a narrower limit than

that upheld in Madsen, which involved a 36-foot no-

protest buffer zone around an abortion clinic.

Madsen, 512 U.S. at 769-70. Because the injunction

bars only further violations of the same, constitu-

tionally valid law that Maldonado previously violated,

it “burdens no more speech than necessary to

accomplish” the government’s interest in curtailing

billboard advertising. See id. at 754.

D. EQUAL PROTECTION

The COAA exempts billboards that were already

in place in 1967. Cal. Bus. & Prof. Code § 5364.

Maldonado argues that this exception violates equal

protection because it permits some speakers to

App. 21

maintain billboards with offsite commercial adver-

tising while barring him from doing so. Further, he

claims that because speech is involved, the grand-

fathering clause is subject to strict scrutiny.

We have previously held that strict scrutiny

under the Equal Protection Clause is inappropriate

where a law regulating speech is content-neutral,

even where the speech at issue was non-commercial.

Jones Intercable of San Diego, Inc. v. City of Chula

Vista, 80 F.3d 320, 327 (9th Cir. 1996) (citing Turner

Broadcasting System, Inc. v. FCC, 512 U.S. 622, 655

(1994)). The grandfathering clause of the COAA must

survive, at most, an intermediate level of scrutiny.

See Jones Intercable, 80 F.3d at 327.

The state’s interest is substantial and easily

passes the necessary scrutiny to overcome this equal

protection challenge. The district court noted that

banning new offsite billboards but allowing legal

nonconforming billboards to remain “furthers the

State’s significant interest in reducing blight and

increasing traffic safety,” even if all billboards are not

eliminated. The state government also has a strong

financial interest in allowing the grandfathered

billboards to stay. Without the exemption, the state

would have to pay just compensation to the billboard

owners or risk losing the state’s full allotment of

federal highway money. See 23 U.S.C. §131.

Maldonado’s complaint against grandfathering also

overlooks an important point — when he purchased

the property in the early 1990s, the offsite ban had

been in effect for more than twenty years. His sign

App. 22

was never legally permitted or maintained, so he is

not similarly situated to the grandfathered land-

owners. Maldonado’s equal protection challenge to the

grandfathering provision fails.“

Dismissed as moot with respect to Maldonado’s

challenges to the district court’s injunction and

affirmed as to the district court’s grant of summary

judgment on the remaining claims.

DISMISSED IN PART; AFFIRMED IN PART.

Except to the extent that it is subsumed in his equal

protection argument, we decline to address Maldonado’s passing

references to “spot zoning.” Arguments made in passing and

inadequately briefed are waived. Halicki Films, L.L.C. v

Sanderson Sales & Mktg., 547 F.3d 1213, 1229-30 (9th Cir

Z008)

App. 23

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

NANO MALDONADO, No. C 02-03167 CRB

Plaintiff, JUDGMENT

Vv. (Filed Mar. 1, 2007)

WILL KEMPTON, in his

capacity as Director of the

California Department of

Transportation,

Defendant. /

The Court having (1) dismissed certain of plain-

tiffs claims by Order dated November 27, 2002, and

those claims having not been appealed; (2) dismissed

plaintiffs challenge to the California Outdoor Adver-

tising Act’s restrictions on commercial speech by

Order dated October 25, 2005; (3) granted plaintiffs

motion for summary judgment by Memorandum and

Order dated March 23, 2006; (4) granted defendant’s

motion for summary judgment by Memorandum and

Orders dated July 13, 2006 and January 10, 2007;

and (5) reviewed plaintiffs proposed judgment and

defendant’s approval of the judgment as to form,

judgment is entered as follows:

1. Judgment is entered in favor of plaintiff and

against defendant on plaintiffs claim that the Cali-

fornia Outdoor Advertising Act is unconstitutional on

its face with respect to non-commercial speech as set

forth in the Court’s Order dated March 23, 2006. The

App. 24

California Department of Transportation is perma-

nentiy enjoined from enforcing the COAA to prohibit

non-commercial speech wherever COAA permits

commercial speech and the Department must comply

with the Court’s order filed April 10, 2006.

2. Judgment is entered in favor of defendant

and against plaintiff in accordance with the Court’s

orders of October 25, 2005, July 13, 2006, and Janu-

ary 10, 2007.

IT IS SO ORDERED.

Dated: March 1, 2007 /s/ Charles R. Breyer

CHARLES R. BREYER

UNITED STATES

DISTRICT JUDGE

App. 25

2007 WL 108414 (N.D. Cal.)

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF CALIFORNIA

NANO MALDONADO,

Plaintiff, No. C 02-03167 CRB

o: MEMORANDUM

AND ORDER

WILL KEMPTON,

(Filed Jan. 10, 2007)

Defendant. /

Plaintiff alleges that California’s Outdoor Adver-

tising Act (““COAA”) is unconstitutional on its face

and as applied to a billboard he owns adjacent to

Highway 101 in Redwood City, California. The Court

has previously adjudicated nearly all the claims in

this lawsuit. The only claim remaining is plaintiff’s

contention that the State has violated his equal

protection rights by prohibiting off-premises commer-

cial displays on his billboard while allowing other off-

premises commercial displays along the same area of

highway.

Now pending before the Court are the parties’

further memoranda and evidence in support of their

cross motions for summary judgment on the equal

protection claim. As the parties are familiar with the

background facts of their long-standing dispute as set

App. 26

forth in the Court’s several memoranda and orders,

they will not be repeated here. After carefully con-

sidering the parties’ papers and evidence, the Court

GRANTS defendant’s motion and DENIES plaintiff’s

cross motion.

UNDISPUTED FACTS

A. The State’s Billboard Laws

California adopted its statutes prohibiting the

placement of outdoor advertising displays adjacent to

landscaped freeways in 1953. Declaration of Ronald

W. Beals (“Beals Decl.”) ¥ 3. The statutes originally

provided that legally placed billboards existing at the

time of the adoption of the statutes would be removed

without compensation within three years after the

freeway section was classified as landscaped. /d.

In 1965 Congress enacted the Highway Beauti-

fication Act, 23 U.S.C. section 131, which established

national regulation for billboards along highways

that receive federal aid. 23 U.S.C. § 181(a) (finding

that “the erection and maintenance of outdoor adver-

tising signs, displays, and devices in areas adjacent to

the Interstate System and the primary system should

be controlled in order to protect the public investment

in such highways, to promote the safety and recrea-

tional value of public travel, and to preserve natural

beauty”). The Highway Beautification Act imposes its

standards upon the states by providing that any state

that fails to comply with the Act shall lose ten percent

of its federal highway funds. 23 U.S.C. § 131(b).

App. 27

Among other things, the Act requires that “just

compensation” be paid to the owner of any lawfully

erected billboard if the state takes from the owner the

right to erect and maintain signs, displays and de-

vices on the billboard. 23 U.S.C. § 131(g). The federal

share of such compensation is 75 percent. Jd.

California amended COAA in 1967 to comply

with the Highway Beautification Act, and, in partic-

ular, it amended COAA to provide for just compensa-

tion. Bus. & Prof. Code § 5288.3a (1967). Under the

Highway Beautification Act, the State gained juris-

diction over all federal-aid highways in incorporated

areas, such as Redwood City, which included thou-

sands of off-premises displays that had been erected

in accordance with local ordinances and had not

required State permits. Beals Decl. 4 5. As a result,

many of these displays became nonconforming, that

is, they violated the State landscaped freeway pro-

visions and other federal requirements. Jd. These

billboard shall be referred to as “legal, nonconform-

ing.” The State subsequently inspected all highways

to determine which billboards were legal under the

new law, legal nonconforming, or illegal. Jd.

Congress subsequently amended the Highway

Beautification Act to specify that states must pay

compensation for the removal of all billboards, re-

gardiess of whether the removal is caused by non-

conformance with federal law or more strict state

standards. Id. 4 12; 23 U.S.C. § 131(g). California’s

billboard law complies with the federal act. Bus. &

Prof. Code § 5412 (“no advertising display which was

App. 28

lawfully erected anywhere within this state shall be

compelled to be removed, nor shall its customary

maintenance or use be limited, whether or not the

removal or limitation is pursuant to or because of this

chapter or any other law, ordinance, or regulation of

any governmental entity, without payment of com-

pensation”). Congress has failed to appropriate any

monies to pay its share of the required “just com-

pensation” for more than 30 years. Beals Decl. ¥ 6. As

a result, since 1974 or 1975, the State has decided not

to commence discretionary removals or commence

litigation to remeve nonconforming displays if com-

pensation has to be paid. Id. { 9.

In sum, “since 1967, new outdoor advertising

displays have been prohibited along classified land-

scaped freeways, but existing, legally erected bill-

boards have been allowed to remain as “‘nonconforming

displays.’” id. 4 15. The State continues to enforce

the Act against illegal displays along landscaped free-

ways and to require their removal, such as with

plaintiff Maldonado. Beal Decl. { 15-16; Declaration

of Christopher Lewis (“Lewis Decl.”) 4 8.

B. Piaintiff’s Billboard and the Surrounding

Area

It is undisputed that plaintiff’s billboard does

not qualify as a “legal nonconforming” outdoor ad-

vertising display. The State never issued a permit for

off-premises commercial displays on plaintiff’s bill-

board prior to the State’s adoption of regulations

App. 29

prohibiting such displays, and the billboard never

otherwise lawfully displayed off-premises commercial

advertising. It is equally undisputed that all of

the off-premises commercial billboards identified by

plaintiff as evidence of the State’s unequal treatment

are either legal, that is, not adjacent to a landscaped

portion of the freeway, or legal nonconforming, that

is, these billboards lawfully displayed off-premises

commercial advertisements prior to the State’s adop-

tion of laws making such displays illegal. Lewis Decl.

(QW 5-7. Finally, it is undisputed that if the State were

to require these billboard owners to cease displaying

off-premises commercial advertisements, the State

would have to pay the owners just compensation or

otherwise risk losing ten percent of the State’s federal

highway funds. See People ex rel. Dep't of Transp. uv.

Desert Outdoor Advertising, Inc., 68 Cal.App.3d 440,

448-51 (1977).

DISCUSSION

Plaintiff argues that the State has violated the

Equal Protection Clause by failing to remove legal

nonconforming off-premises commercial displays along

landscaped freeways while at the same time pro-

hibiting plaintiff from placing off-premises com-

mercial displays on his billboard.’ In other words,

It is worth noting that when plaintiff purchased his

billboard, the restrictions on off-premises commercial displays

were in effect; the right to such displays was not included in the

“bundle of rights” plaintiff purchased with his billboard.

App. 30

plaintiff objects to the perpetual “grandfathering” of

the legal nonconforming off-premises commercial

billboards. The ultimate question, then, ts whether

the Equal Protection Clause requires the State to re-

move all such billboards, including legal nonconform-

ing billboards, or, in the alternative, requires the

State to allow all off-premises commercial billboards,

even those erected after the enactment of the laws

prohibiting such billboards.

“The Equal Protection Clause of the Fourteenth

Amendment, § 1, commands that no State shall ‘deny

to any person within its jurisdiction the equal pro-

tection of the laws.” Nordlinger v. Hahn, 505 U.S. 1,

10 (1992). “The Equal Protection Clause does not

forbid classifications. It simply keeps governmental

decisionmakers from treating differently persons who

are in all relevant respects alike.” Jd. “[UJnless a

classification warrants some form of heightened re-

view because it jeopardizes exercise of a fundamental

right or categorizes on the basis of an inherently

suspect characteristic, the Equal Protection Clause

requires only that the classification rationally further

a iegitimate state interest.” Id.; see also New Orleans

v. Dukes, 427 U.S. 297, 303 (1976) (“Unless a classifi-

cation trammels fundamental personal rights or is

drawn upon inherently suspect distinctions such as

race, religion, or alienage, [the Supreme Court’s] de-

cisions presume the constitutionality of the statutory

discriminations and require only that the classifica-

tion challenged be rationally related to a legitimate

state interest”).

App. 31

It is undisputed that the classification at issue

here — differentiating between signs that were legal

when erected and those that were never legal — is not

based upon an inherently suspect characteristic.

Plaintiff argues, however, that the classification jeop-

ardizes the fundamental right of free speech; thus,

the Court must apply strict scrutiny or at least the

heightened review accorded commercial speech.

None of the cases cited by plaintiff involve the

“srandfathering” of pre-existing legal commercial

speech from new regulations prohibiting such speech;

instead, all involve First Amendment challenges to

content-based restrictions on speech. The ordinance

at issue in R.A.V. v. City of St. Paul, 505 U.S. 377

(1982), for example, prohibited fighting words that

insult or provoke violence on the basis of gender, race

or religion, but not on any other basis, such as polit-

ical affiliation or sexual preference. Jd. at 391. Simi-

larly, in Greater New Orleans v. United States, 527

U.S. 173 (1999), the regulation permitted broadcast

advertisement of Indian casino or state-sponsored

gambling, but not of gambling at legal, but privately-

owned casinos. /d. at 190-91; see also Schad uv.

Borough of Mt. Ephraim, 452 U.S. 61, 72 (1981)

(ordinance prohibiting live entertainment but not

other types of entertainment or commercial estab-

lishments).

Plaintiff’s contention that the grandfathering

provision is content based is unpersuasive. Whether a

law is content based “turns on whether the [law]

singles out certain speech for differential treatment

App. 32

based on the ideas expressed.” G.K. Ltd. Travel v. City

of Lake Oswego, 436 F.3d 1064, 1078 (9th Cir. 2006)

(internal quotation marks and citation omitted). In

G.K. Ltd. Travel, the Ninth Circuit held that an

ordinance that exempted preexisting pole signs from

its prohibition on such signs until such time as the

pole sign is altered was not content based: “A grand-

father provision requiring an officer to read a sign’s

message for no other purpose than to determine if the

text or logo has changed, making the sign now subject

to the City’s regulations, is not content based.” Jd. at

1079. Here, State officials do not even have to read a

sign’s message to determine if the sign is subject to

the State’s prohibition on off-premises commercial

advertising on landscaped freeways; instead, the

official merely reviews State records to determine if

the billboard had a permit for such displays prior

to the law’s enactment or was otherwise lawfully

erected. As the grandfather provision is not content

based, strict scrutiny is not required. See Jones

Intercable of San Diego, Inc. v. Chula Vista, 80 F.3d

320, 325 (9th Cir. 1996).

The case most closely on point is Outdoor Media

Dimensions, Inc. v. Oregon, 150 Or.App. 106, 945 P.2d

614 (1997). The grandfathering law at issue there

granted outdoor advertising permits to those who

owned billboards on or before a certain date, but not

after. Jd. at 624. The court held that rational review

rather than strict scrutiny applied because the class-

ification itse]}f was content neutral. Jd. at 625. The

court concluded that the law’s prohibition on the

App. 33

installation of new billboards rationally furthered the

state’s interest in aesthetics and safety “because the

legislature reasonably could have concluded that

placing a cap on billboards would control visual blight

and make traffic signs more visible. Allowing an

exception for billboards already in existence ... does

not compromise the validity of those interests... .

[T]he legislature could reasonably have concluded

that the property interests of billboard owners justi-

fies the disparate treatment.” Jd. (internal quotation

marks and citations omitted); see also Desert Outdoor

Advertising, 68 Cal.App.3d at 450 (applying rational

review to an equal protection claim challenging COAA’s

compensation scheme).

The Ninth Circuit addressed an equa! protection

challenge in the commercial speech context in Jones

Intercable of San Diego, Inc. The plaintiff cable oper-

ator sued the city for damages for rejecting its appli-

cation to provide cable service to recently-annexed

areas of the City. The district court dismissed the

claim as barred by a federal law which precludes

damages relief for a claim against a government

entity arising from regulation of cable service. 80 F.3d

at 323. On appeal, the plaintiff argued that the law

precluding a damages remedy violated the Equal

Protection Clause because it did not apply to other

entertainment businesses or franchised utilities, such

as water, gas and electricity. Jd. at 327. The Ninth

Circuit, after rejecting the plaintiff’s argument that

strict scrutiny applies, held that “[w]Jhether the

applicable standard of equal protection review is one

App. 34

of rational basis or some intermediate standard, there

is ample justification for Congress’s precluding dam-

ages only for the cable operators that it was subject-

ing to local government franchising power.” Jd.

Here, too, “whether the applicable standard of

equal protection review is one of rational basis or

some intermediate standard,” id., there is substantial

justification for the State’s decision not to remove

those billboards for which it must pay compensation.

First, the State’s decision to pay compensation to

owners of legal nonconforming billboards is substan-

tially related to a significant government interest. If

the State removes the signs but refuses to pay

compensation, the State loses ten percent of its State

highway funds. 23 U.S.C. § 131(b), (g). The State, of

course, has a substantial interest in retaining those

funds. See Desert Outdoor Advertising, 68 Cal.App.3d

at 450. Second, the State’s decision not to remove the

legal nonconforming billboards and pay compensation

is also substantially related to a significant govern-

ment interest. As federal law requires the federal

government to pay 75 percent of the just compen-

sation, but the federal government continuously fails

to allocate any funds for such payments, the State

would have to pay all of the just compensation.

The State’s policy to prohibit new off-premises

commercial billboards, but allow legal nonconforming

billboard displays to remain, is also justified; such

a policy furthers the State’s significant interest in

App. 35

reducing blight and increasing traffic safety by reduc-

ing the number of billboards along state highways,

even if it does not eliminate them entirely. See

Outdoor Media Dimensions, Inc., 150 P.2d at 625. As

the Ninth Circuit has observed, if a sign ordinance “is

designed to advance a valid [government] interest —

reducing the number of dangerous, non-conforming

signs — it should not matter that it is underinclusive.”

Clear Channel Outdoor, Inc. v. Los Angeles, 340 F.3d

810, 816 (9th Cir. 2003); see also id. at 815 (“An

inspection program that targets only a subset of all

signs is not necessarily inconsistent with the goals of

safety an [sic] aesthetics for the same reasons that it

is permissible to distinguish between on-site and off-

site signs in the first place”).

CONCLUSION

The State’s decision not to remove legal, non-

conforming off-premises commercial billboards along

landscaped highways, but enforce COAA against

illegal off-premises commercial billboards along the

same highways, does not violate the Equal Protection

Clause as a matter of law. As plaintiff offers no

evidence that suggests that the State is selectively

enforcing the law against his ilegal billboard and

indeed, the State’s evidence establishes the contrary,

plaintiff’s motion for summary judgment on plain-

tiff’s equal protection claim is DENIED and defen-

dant’s motion is GRANTED. As this is the last claim

App. 36

remaining in this lawsuit, the Court will issue a

judgment.

IT IS SO ORDERED.

/s/ Charles Breyer __

Dated: January 10, 2007 CHARLES R. BREYER

UNITED STATES

DISTRICT JUDGE

App. 37

2006 WL 1980393 (N.D.Cal.)

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF CALIFORNIA

NANO MALDONADO,

Plaintiff, No. C 02-03167 CRB

‘ MEMORANDUM

: AND ORDER

WILL KEMPTON,

(Filed Jul. 13, 2006)

Defendant. /

In this section 1983 action plaintiff alleges that

California’s Outdoor Advertising Act (“the Act” or

“COAA”) violates the First Amendment on its face

and as applied to a billboard he owns adjacent to

Highway 101 in Redwood City, California. The Court

has already issued several rulings in this case. The

Court rejected plaintiff's challenge to the Act’s ban on

off-premises commercial advertising. October 25,

2005 Order. The Court also ruled that the Act is uncon-

stitutional to the extent it prohibits non-commercial

billboard displays where it permits on-premises com-

mercial advertising. The Court therefore enjoined the

defendant from enforcing the Act to prohibit non-

commercial speech where the Act permits commercial

speech. Maldonado v. Kempton, 422 F.Supp.2d 1169

(N.D. Cal. 2006).

App. 38

Now pending before the Court are the parties’

cross-motions for summary judgment on the remain-

ing claims. As the parties are familiar with the back-

ground facts, the Court will not repeat them here.

DISCUSSION

Although the Court has previously ruled that the

State may prohibit off-premises commercial speech

at the same time it permits on-premises commercial

speech, plaintiff still challenges the Act’s prohibition

on off-premises commercial speech on a variety of

grounds: (1) it is unconstitutional because it permits

an off-premises commercial billboard to be declared a

public nuisance; (2) it is unconstitutional because the

distinction between commercial and non-commercial

speech is inherently vague; (3) the prohibition vio-

lates due process; (4) the prohibition violates some-

thing plaintiff refers to as “the suppression doctrine;”

and (5) it violates the Equal Protection Clause as

applied to him because the State permits some off

premises commercial displays along landscaped free

ways. Plaintiff also secks to have the Court declare

that certain proposed signs are non-commercial and

therefore not subject to COAA’s prohibition on off

premises commercial advertising, and that the free-

way adjacent to his billboard does not satisfy regula

tions defining a

landscaped” freeway

App. 39

I. Standing

Defendant maintains that plaintiff cannot prove

that he has standing to challenge the Act’s restric-

tions on commercial speech. To establish standing,

plaintiff must prove: (1) that “there is actual or

imminent injury, which is concrete and particu-

larized, not hypothetical or conjectura!,” (2) that the

injury is fairly traceable to the State’s actions, and (3)

“that it is likely, not merely speculative, that the

injury will be redressed by a favorable decision.”

Valley Outdoor, Inc. v. City of Riverside, 446 F.3d 948,

953 (9th Cir. 2006). Defendant contends that plaintiff

cannot satisfy the third element — redressability —

because it is undisputed that Redwood City’s sign

ordinance applies to plaintiff’s billboard and pro-

hibits off-premises commercial advertising. See Decla-

ration of Gerald Kelly 7 15, Exh. A, p. 10 (Redwood

City ordinance § 3.114(a)). Moreover, to be entitled to

a permit from CalTrans for off-premises commercial

advertising, plaintiff would have to show written

consent from Redwood City. Cal. Bus. & Prof. Code

§ 5354(a). Thus, argues defendant, even if the Court

were to enjoin the State from applying the off-site

commercial advertising ban to plaintiff’s billboard,

plaintiff would still not be able to engage in off-site

commercial advertising.

As support for his argument, defendant relies on

a Seventh Circuit case, Harp Advertising Ill. v.

Village of Chicago Ridge, 9 ¥.3d 1290, 1291-93 (7th

Cir. 1993). In Harp, the plaintiff advertising company

sued the Village on the ground that a Village sign

App. 40

ordinance and a zoning ordinance violated the First

Amendment. The Seventh Circuit ruled that the

plaintiff did not prove that it had standing because a

different ordinance governing the size of billboards —

and not challenged by the plaintiff — also prohibited

the plaintiff’s proposed billboard. The plaintiff there-

fore lacked “standing to challenge either the sign code

or the zoning code, because it could not put up its sign

even if it achieved total victory in this litigation.” Jd.

at 1291 (citing Renne v. Geary, 111 S.Ct. 2331, 2337-

38 (1991)).

When the challenged statute is the only

thing standing in the way of additional

speech, the winner of the contest has a

valuable prize, even if the government may

enact a different statute that snatches away

the victory. [The plaintiff] has no similar

prospect of gain. An injunction against the

portions of the sign and zoning codes that it

has challenged would not let it erect the

proposed sign; the village could block the

sign simply by enforcing another, valid,

ordinance already on the books. [The plain-

tiff} has no more to gain from winning this

suit than would a firm seeking to erect a sign

in Alaska (where an ordinance similar to

[defendant’s] spelled the difference), or a

lawyer living in Chicago Ridge and inter-

ested not in erecting signs, but in constitu-

tional injury.

Id. at 1292. Because winning the case would not

redress the plaintiff’s injury (being able to billboard

App. 41

advertise), the plaintiff had not satisfied the redress-

ability element of standing. /d.; see also Get Outdoors

IT, Inc. v. San Diego, 381 F.Supp.2d 1250, 1259-60

(S.D. Cal. 2005) (dismissing for lack of redressabilty);

Trinity Outdoor, L.L.C. v. Rockland, Maryland, 2004

WL 78054 (D. Md. Jan. 15, 2004) (applying Harp and

finding no standing because other non-challenged

ordinances prohibited plaintiff’s proposed advertising

display).

The same reasoning appears to apply here. Even

if plaintiff convinces the Court to enjoin the State

from enforcing COAA’s prohibition on off-site com-

mercial advertising against plaintiff, Redwood City

“could block the sign simply by enforcing another,

valid, ordinance already on the books,” id. at 1292;

namely, its ordinance prohibiting off-premises com-

mercial displays. Indeed, the undisputed evidence

demonstrates that Redwood City has already en-

forced its ordinance against plaintiff by allowing him

to keep his billboard on the condition that he use it

only for on-premises commercial advertising or non-

commercial messages.

Plaintiff’s assertion that the Ninth Circuit and

this Court have already decided standing in his favor

on all the claims in his lawsuit is wrong. No court has

ruled on his standing to pursue the claims in his

amended complaint; no court has ruled on his

standing on a motion for summary judgment rather

than a motion to dismiss; and, in any event, no court

has addressed plaintiff’s standing in light of the

Redwood City ordinance.

App. 42

Plaintiff’s attempt to distinguish Harp is also

unpersuasive. That one of the two-challenged ordi-

nances in Harp was repealed was not material to the

court’s standing decision; the dispositive issue was

that the plaintiff did not challenge a different ordi-

nance which prohibited the sign the plaintiff wished

to erect. The same is true here: plaintiff does not

challenge the Redwood City ordinance which pro-

hibits any off-site non-commercial advertising.

A different distinction, not mentioned by plaintiff

in his papers, is nonetheless important. In Harp, the

grounds the plaintiff gave for challenging the sign

and zoning ordinances did not apply to the uncon-

tested ordinance. Here, in contrast, arguably some of

plaintiff’s challenges apply with equal force to the

Redwood City ordinance — after all, both laws prohibit

off-premises commercial advertising. For example,

plaintiff’s claim that the distinction between com-

mercial and non-commercial speech is inherently

vague applies to COAA and the Redwood City ordi-

nance. If plaintiff were to prevail on his claim in this

lawsuit, he might then be entitled to similar relief

against Redwood City.

In addition, in some instances plaintiff may be

seeking relief that is not precluded by the Redwood

City ordinance. For example, plaintiff challenges

Business and Professions Code section 5461 and its

concomittant procedures for declaring a billboard that

does not comply with COAA a public nuisance. While

plaintiff’s complaint and pleadings are far from clear,

it may be that the Court could give plaintiff some

App. 43

relief even if his commercial sign would nonetheless

be barred by the Redwood City ordinance.

In any event, as the above discussion demon-

strates, the Court must examine defendant’s standing

argument in the context of each of plaintiff’s specific

claims.

Il. Plaintiff’s Claims

A. Injunctions are unconstitutional

Plaintiff argues that COAA is unconstitutional

because it permits courts to enjoin commercial bill-

boards that violate the Act. California Business and

Professions Code section 5461 provides, in relevant

part, that all advertising displays that violate COAA

“may be removed by any public employee as further

provided in this chapter.” While his argument is

somewhat difficult to follow, he appears to contend

that any injunctions issued pursuant to section 5461,

including the October 7, 1999 state court injunction

issued against plaintiff, are unconstitutional because

they allow activity to be enjoined as a nuisance and

they allow persons, such as plaintiff, to be punished

for contempt. In other words, he argues that it is

unconstitutional to enjoin the publication of commer-

cial speech, even if such speech violates an otherwise

lawful regulation. He therefore seeks an injunction

enjoining “enforcement of Business and Professions

Code section 5461 and all state court injunctions

based thereon including the state court injunction

App. 44

against Mr. Maldonado.” Plaintiff’s Motion for Sum-

mary Judgment at 9.

The Court will assume that plaintiff has standing

to make this claim. The claim is, at bottom, an attack

on the prohibition on off-site commercial billboards: if

governmental entities cannot enjoin persons from

violating such prohibitions, and cannot hold persons

in contempt for violating the injunctions, the pro-

hibition is meaningless. Thus, plaintiff’s argument, if

successful, would render the Redwood City ordinance

unconstitutional as well.

Plaintiff’s argument, however, is not successful.

He relies solely on United States Supreme Court

cases decided before Central Hudson Gas & Elec.

Corp. v. Public Serv. Comm’n of New York, 447 U.S.

557 (1980) and Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981). In Central Hudson, the Supreme

Court approved restrictions on commercial speech,

provided such restrictions meet the test set out in the

opinion. 477 U.S. at 566; see also In re Doser, 412 F.3d

1056, 1063 (9th Cir. 2005) (“Commercial speech is

afforded less protection than other forms of protected

expression”). The Ninth Circuit has_ interpreted

Metromedia as standing for the proposition that a

governmental entity can either ban all signs or ban

all signs with the exception of on-premises signs to

advance the government’s interest in traffic safety

and aesthetics. See Outdoor Sys. Inc. v. Mesa, 997

F.2d 604, 610-11 (9th Cir. 1993).

App. 45

The Court understands that plaintiff disagrees

with these cases and believes that if the Supreme

Court were presented with the issue today it would

rule differently. As this Court has previously noted, it

is not for this Court “to overrule Supreme Court

authority that is squarely on point.” Ackerley Comm.

of the Northwest Inc. v. Krochalis, 108 F.3d 1095,

1096 (9th Cir. 1997).

B. Commercial v. non-commercial is inher-

ently vague

Next, plaintiff contends that COAA must be

invalidated in its entirety because the commercial

versus non-commercial distinction is inherently

vague. As the Court previously ruled that the State

could not constitutionally prohibit non-commercial

speech where it permits on-premises commercial

speech, plaintiff’s argument is that the State must

permit all speech, commercial and non-commercial

alike, or prohibit all speech, regardless of content. For

the reasons stated in the previous section, the Court

will assume that plaintiff has standing to make this

claim.

As plaintiff acknowledges, his contention is

foreclosed by binding Ninth Circuit precedent. See

Plaintiff’s Motion for Summary Judgment at 14. In

Outdoor Systems, Inc., the court rejected the precise

argument made by plaintiff here:

Because our First Amendment jurisprudence

recognizes a distinction between commercial

App. 46

and noncommercial speech, government offi-

cials have to place a particular message into

one or the other category for purposes of

regulation. The potential difficulty of that

categorization in itself does not render the

regulations unconstitutional... .

We also disagree with the contention that

the city officials’ discretion is unfettered. On

the contrary, the city officials can and must

rely on judicial precedent to determine what

is commercial speech.... [S]ufficient guid-

ance in categorizing speech as commercial or

noncommercial is provided by various deci-

sions of the Supreme Court. If the Supreme

Court’s definitions of commercial and non-

commercial speech do not constitute “narrow,

objective, and definite standards,” it is hard

to imagine what would.

997 F.2d at 613; see also Clear Channel Outdoor Inc.

v. City of Los Angeles, 340 F.3d 810, 816 (9th Cir.

2003) (rejecting challenge to commercial/noncommercial

and on-premises/off-premises distinction in ordinance

on the ground that the distinctions “have been suf-

ficiently explicated in case law”).

C. Substantive due process

Plaintiff also contends that the State’s designa-

tion of the freeway adjacent to his billboard as “land-

scaped” violates substantive due process.

COAA defines a landscaped freeway as “a section

or sections of a freeway that is now, or hereafter may

App. 47

be, improved by the planting at least on one side or

on the median of the freeway right-of-way of lawns,

trees, shrubs, flowers or other ornamental vegetation

requiring reasonable maintenance.” Cal. Bus. & Prof.

Code § 5216(a). The California Code of Regulations

includes detailed regulations governing the designa-

tion of an area of freeway as “landscaped.” 4 Ca CCR

§ 2500 et seq. The regulations give the “Chief Land-

scape Architect,” or whoever is so delegated, the

authority to classify a freeway as landscaped, id.

§ 2504, and include details such as the timing and

deadlines for designation and the requirements for

such designation. See, e.g., §§ 2505, 2506, 2507. A

freeway is classified as “landscaped” only when the

landscaping is complete and a licensed Landscape

Architect from the Department of Transportation

upon personal inspection certifies in writing that the

freeway is landscaped. /d. at § 2506(a), 2508(a). A

person may petition the Department of Transporta-

tion to declassify a landscaped freeway, and the De-

partment must make a determination within 90 days

of receiving the petition. Jd. at § 2512.

Plaintiff first makes what he characterizes as a

“facial” challenge to the landscape classification of the

freeway at issue on the ground that it is arbitrary

and capricious to classify the freeway as such in light

of the regulations defining Redwood City as “urban.”

See Cal. Bus. & Prof. Code § 5408. He also argues

that the classification violates substantive due process

“as applied” based on the particular characteristics of

App. 48

the freeway adjacent to his billboard. Plaintiff’s

challenge fails for several reasons.

First, plaintiff has failed to show that he has

standing to make this claim as the Court discussed at

the beginning of its Memorandum and Order. Even if

he were to succeed, the Redwood City ordinance

would still preclude him from placing any off-

premises commercial display on his billboard; thus,

his success would not grant him any relief. Although

plaintiff has been given numerous opportunities to do

so, he has not articulated any challenge to the Red-

wood City ordinance other than those the Court has

inferred, discussed, and rejected earlier in this Memo-

randum and Order. As the Redwood City ordinance

remains unchallenged, the Court must assume that

plaintiff at this time lacks standing to challenge the

designation of the freeway adjacent to his billboard as

landscaped. See Harp Advertising Ill., 9 F.3d at 1292.

Second, even assuming he has standing, the Act’s

definition of “urban” does not mean that it violates

substantive due process (or what plaintiff refers to as

the “suppression doctrine) to also characterize such

an area as landscaped. Plaintiff cites no case that

suggests that the myriad cases holding that a govern-

mental entity may prohibit off-premises commercial

signs in the name of traffic safety or aesthetics some-

how do not apply to urban areas. Plaintiff’s reliance

on City of Laude v. Gilleo, 512 U.S. 43, 49-54 (1994) is

unavailing. Laude involved an ordinance prohibiting

nearly all signs, including non-commercial signs, in

residential areas. /d. at 55 (stating that the ordinance

App. 49

is unconstitutional because it forecloses a certain

medium of expression “to political, religious, or per-

sonal messages”).

Third, assuming plaintiff is correct that the area

adjacent to his billboard is no longer landscaped and

does not meet the requirements for being classified as

such, Department of Transportation regulations pro-

vide him with a mechanism to request the declassi-

fication of the freeway. 4 Ca CCR § 2512. There is no

evidence that plaintiff has ever made any such

request and plaintiff has not proffered any reason

why he should not first be required to avail himself of

this mechanism before this Court reaches out and

decides an issue of state law; namely, whether the

freeway satisfies the State’s definition of “land-

scaped.”

D. Equal protection

Plaintiff also contends the State has violated his

equal protection rights because it permits other off-

premises commercial billboard displays along the

area of “landscaped” freeways adjacent to his freeway.

When COAA was enacted, the legislature decided

that billboard displays that were lawful at the time

COAA was passed would not violate COAA even if the

billboards’ current use violated the newly enacted

law. Cal. Bus. & Prof. Code § 5216.1. The legislature

determined that such “lawfully erected” displays

could not be removed, or its “customary maintenance

or use be limited,” without paying just compensation

App. 50

to the owner. Jd. § 5412. The State contends that the

off-premises commercial displays identified by plain-

tiff all fall within this exception to the Act; these

billboards all displayed off-premises commercial ad-

vertisements at the time the freeway was designated

as “landscaped.” According to defendant, the State

has never budgeted any monies to condemn these

billboards; thus, it permits these off-premises com-

mercial displays while prohibiting any new off-site

commercial displays along the same area of freeway.

Plaintiff does not dispute the State’s assertion.

Nor does he contend that his biilboard qualifies for

similar treatment; he does not dispute the State’s

evidence that the State has never issued a permit for

off-premises commercial advertising on his billboard.

Plaintiff purchased the billboard in 19983, after off-

premises commercial advertising had already been

banned along the freeway.

Plaintiff nonetheless contends that the State’s

grandfathering of the previously lawful off-premises

commercial advertising displays violates equal pro-

tection. “he Equal Protection Clause of the Four-

teenth Amendment, § 1, commands that no State

shall ‘deny to any person within its jurisdiction the

equal protection of the laws.’” Nordlinger v. Hahn,

505 U.S. 1, 10 (1992). “The Equal Protection Clause

does not forbid classifications. It simply keeps gov-

ernmental decisionmakers from treating differently

persons who are in all relevant respects alike.” /d.

“(Ulnless a classification warrants some form of

heightened review because it jeopardizes exercise of a

App. 51

fundamental right or categorizes on the basis of an

inherently suspect characteristic, the Equal Protec

tion Clause requires only that the classification ra-

tionally further a legitimate state interest.” /d.; see

also New Orleans v. Dukes, 427 U.S. 297, 303 (1976)

(“Unless a classification trammels fundamental per-

sonal rights or is drawn upon inherently suspect

distinctions such as race, religion, or alienage, [the

Supreme Court’s] decisions presume the constitu-

tionality of the statutory discriminations and require

only that the classification challenged be rationally

related to a legitimate state interest”).

The first question, then, is what standard of

review to apply to the State’s decision to allow the

“lawfully erected” off-premises commercial billboards

to remain while at the same time prohibiting new off-

premises commercial displays, such as those proposed

by plaintiff. The distinction between new and old

billboards is not drawn upon an inherently suspect

distinction; rather, plaintiff argues that heightened

scrutiny rather than rational review applies because

COAA implicates a fundamental right, namely, free-

dom of speech. Defendant does not address the

standard of review issue. The Court notes, however,

that whatever the standard, it cannot be more

scrutinizing than that normally accorded commercial

speech regulations. As one court has noted, “(blecause

regulation of commercial speech is subject to inter-

mediate scrutiny in a First Amendment challenge, it

follows that equal protection claims involving com

mercial speech also are subject to the same level of

App. 52

review.” Capobianco v. Summers, 377 F.3d 559, 564

(6th Cir. 2004) (internal quotation marks and citation

omitted).

The Court need not decide the standard of

review, however, because it concludes that the record

is inadequate to finally resolve plaintiff's equal

protection claim. Although the State claims that it

has not condemned the legal but non-conforming bill-

boards because it does not want to pay compensation

for the billboard, there is no evidence that such

a decision has actually been made. The statement

from a Senior Highway Outdoor Advertising Inspec-

tor that he “understand|(s! that no monies have ever

been budgeted” for the purpose of condemning non-

conforming signs, Declaration of Sergay Ivazian at

4¥ 10, is not evidence of a rational decision: it is

merely evidence of inaction. Moreover, while COAA

plainly requires compensation to certain billboard

owners, there is no evidence in the record as to why

the legislature requires compensation. See, e.g.,

Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848,

879 (1980) (stating that section 5412 sought to “re-

quire payment of compensation when such |compen-

sation] was necessary to protect California’s receipt of

federal highway funds), rev'd on other grounds, 453

U.S. 490 (1981). Before the Court can declare that the

State’s decision to allow certain non-conforming bill-

boards while prohibiting plaintiff’s is rational (or is

narrowly tailored to satisfy a substantial government

interest) because the State does not want to pay to

condemn the pre-existing displays, the Court must

App. 53

know the basis for the State’s assertion that it must

pay to condemn, other than that the State says it

must.

Moreover, the evidence suggests that the State

has continued to renew permits for off-premises com-

mercial displays along landscaped freeways. When

plaintiff raised this issue in his opposition brief, the

State responded by asserting that there was no

evidence of renewal, even though such renewal was

obvious in light of the period of the permits and the

date the area of freeway at issue was designated as

“landscaped.” The State also asserted that even if

such permits had been renewed, they had been

renewed by mistake. At oral argument the State took

yet another position: it contended that the permits

are renewed automatically. Finally, after oral argu-

ment, the State wrote a letter to the Court advising

that the permits are indeed renewed automatically

because to not do so would require the payment of

compensation. The State’s letter, of course, is not

evidence; nor does it explain the basis for the legis-

lature’s decision to pay compensation to billboard

owners with non-conforming billboards whose per-

mits have expired.

While the State has not met its burden, neither

has plaintiff. See C.A.R. Transp. Brokerage Co., v.

Darden, 213 F.3d 474, 480 (9th Cir. 2000) (stating

when that when the plaintiff moves for summary

judgment he has the burden of producing evidence

that would entitle him to a directed verdict). He has

not shown that the legislature would not have to pay

App. 54

compensation; nor has he cited any law that suggests

that the State’s decision not to condemn in order to

avoid the paying of compensation (assuming such a

decision has been made) is irrational or otherwise

violates the Constitution. Nor has plaintiff addressed

redressability; there is nothing in the record from

which the Court can conclude that the Redwood City

ordinance similarly violates plaintiff’s equal protec-

tion rights. In any event, the Court will not make a

decision on an important issue of constitutional law

on an inadequate record.

Accordingly, the parties’ motions for summary

judgment on plaintiff’s equal protection claim are

continued to give the parties the opportunity to com-

plete the record and more fully explore the issues.

E. Temporary political sign ordinance

COAA prohibits all “advertising structures” along

landscaped freeways, except for, among other things,

on-premises commercial displays. Cal. Bus. & Prof.

Code §§ 5440, 5442.5 This Court, however, has ruled

that the State cannot favor commercial over non-

commercial speech and therefore enjoined the State

from prohibiting non-commercial speech where the

Act prohibits commercial speech.

As a result, plaintiff’s challenge to the temporary

political sign section, Business and Professions Code

section 5405.3, makes no sense. Plaintiff asserts that

he wants to place non-commercial signs, such as

“CalTrans Sucks,” on his property, but not on his

App. 55

billboard, and suggests that he can do so only if the

signs satisfy the temporary political sign require-

ments. Since COAA does not apply to on-premises

commercial advertising, see Cal. Dep't of Transp. v.

Maldonado, 86 Cal.App.4th 1225, 1233-34 (2001), and

since the State must allow non-commercial signs

whereever [sic] such on-premises commercial signs

are allowed, there is nothing in COAA or in the record

that prohibits him from doing so in light of the

Court’s injunction.

This omission highlights another problem with

plaintiff’s claim: ripeness. Plaintiff has not displayed

an obviously non-commercial sign on his property

since the Court issued its injunction. There is nothing

in the record, or the state court injunction, that sug-

gests the State would prohibit him from displaying

such a sign. Accordingly, plaintiff’s challenge to the

“temporary political sign” statute is dismissed.

F. Judicial declaration

In his motion for summary judgment plaintiff

asks this Court to judicially declare whether certain

proposed signs identified in paragraphs 20 through

23 of his Amended Complaint run afoul of COAA; in

other words, he asks this Court, in the first instance,

to decide whether certain conduct would run afoul of

state law (and, by extension, the Redwood City ordi-

nance) and therefore violate the state court injunction

or this Court’s order enjoining the State from ap-

plying COAA to non-commercial speech. Defendant

App. 56

cross-moves for summary judgment, identifying which

of the proposed signs, or portions of the proposed

signs, are, in its opinion, in compliance with COAA.

Plaintiff alleges that in 2004 he was contacted by

a group that proposed to place on plaintiff’s billboard

displays saying, among other things, “Got Faith,” and

“The Family That Prays Together Stays Together.”

Amended Complaint { 20. He then alleges that he

wanted to publish the messages with the names and

addresses of local churches in Redwood City. Jd. He

further alleges that he “has wanted” to publish a

message about contributing funds to the local Rotary

Club, zd. { 21, and a message, paid for out of his own

pocket, supporting the San Francisco Giants. Id. ] 22.

Yet another proposed sign would advertise his

cousin’s Mexican restaurant. Jd. 7 23.

The parties’ request for a declaratory judgment is

denied. First, the Amended Complaint does not in-

clude a Declaratory Judgment Act claim seeking a

declaration as to whether certain proposed signs

would violate COAA.

Second, even if the Amended Complaint included

such a claim, plaintiff has not shown that the claim

is ripe for adjudication. “Ripeness is peculiarly a

question of timing, designed to prevent the courts,

through avoidance of premature adjudication, from

entangling themselves in abstract disagreements.”

Thomas v. Anchorage Equal Rights Commission, 220

F.3d 1134, 1136 (9th Cir. 2000) (internal quotation

marks and citations omitted). The Court’s “role is

App. 57

neither to issue advisory opinions nor to declare

rights in hypothetical cases, but to adjudicate live

cases or controversies consistent with the powers

granted the judiciary in Article III of the Con-

stitution.” Id.

The ripeness inquiry on a claim for declaratory

relief is whether “there is substantial controversy,

between parties having legal interests, of sufficient

immediacy and reality to warrant the issuance of a

declaratory judgment.” Maryland Cas. Co. v. Pacific

Coal Oil, Co., 312 U.S. 270. 273 (1941). The Court

must find that “there exist a constitutional ‘case or

controversy, that the issues presented are ‘definite

and concrete, not hypothetical or abstract.” Thomas,

220 F.3d at 1139 (internal quotation marks and

citation, omitted).

Plaintiff has not shown that there is a definite

and concrete dispute because there is no evidence

that suggests he intends to actually display the signs

set forth in paragraphs 20 through 23 of his Amended

Complaint. He alleges, for example, that “Family

Theater Productions” approached him in October

2004 about displaying signs publishing messages

such as “Got Faith.” Amended Complaint { 20. There

is no evidence that such group is still interested in

publishing such messages today. Plaintiff similarly

claims that he would like to place a display ad-

vertising the Rotary Club, paid for by Rotary Club

members one month and paid by himself one month.

Id. J 21. There is no evidence that plaintiff has ever

been in contact with the Rotary Club about such a

App. 58

sign; indeed, the complaint reads as though plaintiff

and his counsel sat down and thought up various

proposed signs to address as many different issues as

possible.

At oral argument plaintiff’s counsel represented

that his client had once displayed a “Giants” sign

on his billboard. There is no evidence in the record

of this display and what it said; more importantly,

counsel did not represent that the State had

threatened to remove the sign or otherwise indicate

at the time that it believed the sign violated COAA.

The Ninth Circuit’s holding in Maldonado I is

not to the contrary. Maldonado was decided before

plaintiff filed his Amended Complaint and, more im-

portantly, the claim the court reviewed involved a

sign which plaintiff was actually displaying on his

billboard. Maldonado v. Harris, 370 F.3d 945, 953

(9th Cir. 2004) (discussing ripeness in the context of

plaintiff’s challenge to the application of COAA to his

current advertisements).

Finally, the parties’ motions must be denied for a

third reason: neither party provides the Court with

any meaningful analysis. For example, plaintiff con-

tends that the proposed sign advertising a Mexican

Restaurant is non-commercial, but he offers the Court

no analysis, or case citation, to support that remark-

able and unadorned assertion. The State similarly

baldly asserts that a sign identifying the name and

address of a church is an off-premises commercial

display, again without any analysis. This lack of

App. 59

analysis is especially troubling given that earlier in

this litigation the State wrongly contended that a

paid political advertisement qualifies as off-premises

commercial advertising.

For all the above reasons, the parties’ request

that the Court label certain hypothetical signs as

commercial or non-commercial, like an umpire calling

balls and strikes, is denied.

CONCLUSION

Plaintiff’s attempt to invalidate the State’s ban

on off-premises commercial advertising along land-

scaped freeways fails. Most of plaintiff’s arguments

fail based on binding precedent; namely, the opinions

of the Ninth Circuit and the United States Supreme

Court. Accordingly, defendant’s motion for summary

judgment on plaintiff’s claims, other than his equal

protection claim, is GRANTED, and plaintiff’s cross-

motion for summary judgment on those claims is

DENIED.

The parties’ cross-motions for summary judgment

on plaintiff’s equal protection claim is continued to

allow the parties to augment the record and more

completely brief the issues. Each party may submit a

further memorandum with supporting evidence, not

to exceed 10 pages, on or before September 8, 2006.

Any replies shali be filed on or before September 22,

2006. The Court will take the matter under sub-

mission at that time. The Court has given the parties

nearly two months with the expectation that they will

App. 60

use the time to fully explore the facts and law

surrounding this issue.

IT IS SO ORDERED.

/s/ Charles Breyer 7

Dated: July 13, 2006 CHARLES R. BREYER

UNITED STATES

DISTRICT JUDGE

App. 61

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF CALIFORNIA

NANO MALDONADO,

Plaintiff,

Ve No. C 02-03167 CRB

WILL KEMPTON, in his ORDER

capacity as Director of the

California Department of (Filed Apr. 10, 2006)

Transportation,

Defendant.

The Court granted plaintiffs’ motion for summary

judgment and enjoined defendant from enforcing the

California Outdoor Advertising Act (““COAA”) te pro-

hibit non-commercial speech where the Act permits

commercial speech. The Court also expressed its

concern that unless a

This text is long and has been trimmed here. Open the source document for the complete record.

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