The United States Court of Appeals for the Ninth Circuit addressed a case involving Dennis Ballen and Nice Tie Inc., operating as Blazing Bagels, against the City of Redmond and its Planning and Community Development Department. The court amended its previous opinion regarding the district court’s summary judgment, which invalidated the City’s sign ordinance that prohibited portable signs. Following the invalidation, the City enacted a new temporary sign ordinance but indicated a willingness to reinstate the old ordinance depending on the appeal's outcome. The court found that the case is not moot due to the potential for reenactment of the original ordinance and the City’s concession that the new ordinance was merely interim. The ruling confirms that a defendant's voluntary cessation of a challenged practice does not eliminate federal jurisdiction to address the legality of that practice. The Ninth Circuit upheld the district court’s ruling that the City’s sign ordinance was unconstitutional and affirmed the award of attorneys' fees to Ballen totaling $165,508.
On June 17, 1997, the City Council enacted an Ordinance aimed at enhancing traffic safety and community aesthetics by prohibiting most portable and offsite signs, with specific exceptions. The Ordinance prohibits various types of portable signs, including readerboards and sandwich boards, while allowing ten categories of exemptions, such as construction signs, political signs, and temporary window signs. From mid-November 2002 to mid-June 2003, Ballen, owner of Blazing Bagels, employed a sidewalk sign to advertise his business, leading the City to issue a cease-and-desist letter on June 18, 2003, citing violations of the Ordinance. In response, Ballen filed a Complaint in King County Superior Court under 42 U.S.C. 1983, which was removed to federal court. On June 15, 2004, the district court ruled in favor of Ballen, granting his motion for summary judgment and denying the City’s motion. Following this, Ballen sought attorneys’ fees, which the court awarded, totaling $165,508, despite the City’s objections. A timely appeal ensued. The summary judgment was reviewed de novo, with both parties agreeing that the case had no genuine issues of material fact. In response to the court's decision, the City enacted a new sign ordinance on December 6, 2005, repealing the previous ban, but indicated intentions to reinstate the old ordinance if the appeal outcome was favorable.
The City acknowledged that its newly adopted ordinance is a temporary measure in response to a district court's summary judgment ruling, indicating that the case remains active and is not moot. Legal precedents establish that a defendant's voluntary cessation of a challenged practice does not eliminate a federal court's jurisdiction to assess the legality of that practice. The ordinance pertains to commercial speech, defined as speech related to the economic interests of the speaker and audience. Both parties agree that the advertising sign in question qualifies as commercial speech, which is afforded limited First Amendment protection.
Under the Central Hudson test for evaluating governmental restrictions on commercial speech, the first two criteria are met: the speech concerns lawful activity and is not misleading, while the ordinance's objectives of enhancing traffic safety and community aesthetics are substantial governmental interests. The constitutionality of the ordinance hinges on the third and fourth prongs of the Central Hudson test. The court finds that the ordinance fails to meet the fourth prong, which assesses whether the regulation is appropriately tailored to serve its intended governmental interests, thus making further examination of the third prong unnecessary. The fourth prong requires a reasonable fit between the regulation and its goals, and the regulation must be narrowly tailored to achieve its objectives.
A regulation does not need to be the least severe option available but must demonstrate a reasonable fit between its objectives and means. The burden lies with the City to prove that its Ordinance is narrowly tailored. In the case of Discovery Network, the City of Cincinnati's ban on commercial handbills in news racks was deemed unreasonable because it distinguished between commercial and noncommercial handbills without a justifiable basis related to the asserted interests of safety and aesthetics. The Supreme Court found that the harmfulness of the prohibited news racks was comparable to that of the permitted ones, and the content-based nature of the ban suggested a lack of careful consideration of speech burdens.
In the current situation, the City aims to enhance safety and aesthetics through its portable sign Ordinance, which applies content-based exceptions. The City has not justified how exempted signs are less harmful to safety or aesthetics than those that are prohibited. Some exceptions, like political and construction signs, may align with the City’s interests, but others, particularly real estate signs, pose greater risks than benign signs, such as a small bagel shop advertisement. Furthermore, the City appears to favor the interests of the real estate industry while restricting the First Amendment rights of smaller entities. The existence of less intrusive alternatives is a critical consideration in evaluating whether the Ordinance meets the requirements established in Central Hudson's fourth prong.
The court ruled that a city ordinance, which prohibited the distribution of commercial handbills in news racks on public property, did not meet the fourth prong of the Central Hudson test. The court reasoned that both commercial and noncommercial news racks were equally unattractive, and it was unreasonable to discriminate against a small number of commercial news racks when less restrictive alternatives, such as limiting the total number of news racks, were available. In a similar vein, the Federal Alcohol Administration Act's restriction on beer labels displaying alcohol content was found excessive because alternative methods, like directly limiting alcohol content, existed.
The city could have opted for less restrictive measures to serve its interests, such as implementing time, place, and manner restrictions on all commercial signs. The court distinguished this case from Metromedia, where an ordinance restricting outdoor, offsite commercial billboards was upheld, as it directly advanced the city’s interests in traffic safety and aesthetics and was narrowly tailored. The court noted that billboards, being fixed and more intrusive, differ significantly from portable sandwich boards, which can be easily removed. The ordinance in this case exempted several categories of commercial advertising, contrasting with Metromedia's content-neutral distinction. Consequently, the ordinance's inconsistent, content-based distinctions and the availability of less restrictive alternatives led to its failure under Central Hudson’s fourth prong.
Additionally, the city contested the district court’s exclusion of statements from Redmond Code Enforcement Officer Deborah Farris, with evidentiary rulings in summary judgment motions being reviewed for abuse of discretion. The district court's decision can only be overturned if deemed manifestly erroneous and prejudicial.
A trial court is restricted to considering only admissible evidence when ruling on a motion for summary judgment. Under Washington law, ultimate facts, conclusions, and conclusory statements are inadequate for such motions. The Washington Supreme Court emphasizes that only facts that the affiant can testify to from personal knowledge and that are admissible in evidence are relevant. In this case, the declarant's statements regarding the City’s ban on portable signs lack objective factual support and were properly excluded by the district court upon objection. The exclusion of these unsupported legal conclusions was not prejudicial to the City, as they did not address deficiencies in the Ordinance regarding Central Hudson's fourth prong.
The City contends that if the ban is unconstitutional due to the numerous exemptions, these exemptions should be severed. However, severing the Ordinance would lead to civil and criminal penalties for authorized activities and restrict protected speech, necessitating the involvement of exempt parties in the proceedings. Therefore, the district court correctly declined to sever the Ordinance.
The City also challenges the district court's award of attorneys’ fees to the prevailing party, Ballen, under 42 U.S.C. § 1988. The award is reviewed for abuse of discretion, which occurs if the district court applies an erroneous legal standard or clearly erroneous factual findings. Section 1988 allows the prevailing party, except the U.S., to recover reasonable attorney’s fees, aiming to facilitate access to justice for civil rights claims. In this case, there are no special circumstances to deny Ballen's entitlement to fees, and the district court's award is affirmed.
Additionally, the City argues that the awarded fees are excessive. The Ninth Circuit employs the 'lodestar' method to determine reasonable fees, which involves multiplying the hours reasonably spent on litigation by a reasonable hourly rate.
Courts evaluate whether to adjust the presumptively reasonable lodestar figure based on twelve factors, including the time and labor required, the novelty and difficulty of the questions, and the attorney's skill level. The lodestar figure awarded was $165,508, but the City argued for a reduction based on the brief duration of proceedings, minimal discovery, and joint court appearances, claiming that Ballen’s counsel's hours were excessive. The City referenced its own fewer hours as evidence of overwork by Ballen’s counsel. Generally, courts should only adjust the lodestar figure in rare circumstances, as it is presumed to accurately reflect reasonable fees. District courts have discretion to adjust awards for excessive efforts not justified by the case. The district court's fee award was deemed not excessive, and there was no abuse of discretion. Additionally, Redmond’s Ordinance was found to discriminate against commercial speech rights in a manner that exceeded what was necessary for governmental interests, leading to the affirmation of the district court’s summary judgment and attorneys’ fees in favor of Ballen.
