Houston Chronicle Publishing Co. v. City of League City

Citations: 488 F.3d 613; 2007 WL 1544645Docket: 05-41689

Court: Court of Appeals for the Fifth Circuit; May 30, 2007; Federal Appellate Court

Original Court Document: View Document

Combined Opinion SummaryCombined Opinion Original

EnglishEspañolSimplified EnglishEspañol Fácil

The City of League City, Texas, is appealing a permanent injunction that deemed its Ordinance 2004-45 unconstitutional, which regulated street vendors and door-to-door solicitors. The City argues that the plaintiff newspapers, The Houston Chronicle and The Galveston County Daily News, lack standing, that the injunction should be vacated due to mootness since the City repealed unconstitutional parts of the Ordinance, and that the remaining provision, 78-39, which regulates conduct at traffic-signal-controlled intersections, is constitutional. The newspapers counter that they have standing, that the mootness is a result of the City’s actions, that provision 78-39 is unconstitutional as ruled by the district court, and that they were entitled to attorney’s fees.

The court finds both newspapers have standing and upholds the injunction. However, it reverses the district court's ruling on the constitutionality of provision 78-39, stating it has never been applied to the newspapers and is non-discriminatory and content-neutral. Additionally, the court grants the newspapers' cross-appeal for attorney’s fees, recognizing them as prevailing parties under 42 U.S.C. § 1983. The ruling results in a vacatur in part, a reversal in part, and a remand for further proceedings.

The dispute follows a prior Texas state-court case where the Houston Chronicle secured a consent judgment preventing the City from prosecuting its vendors under a state law prohibiting street solicitations. The Ordinance required vendors to register, undergo background checks, pay fees, and post bonds, with certain exemptions for youth organizations. The contentious provision 78-39 prohibits soliciting from traffic-controlled roadways but allows solicitation from sidewalks and unpaved areas.

A year following the 2004 state-court consent judgment, the City issued citations to two vendors of the Houston Chronicle for selling newspapers without a permit, invoking Ordinance provision 78-38, which prohibits soliciting on public property without authorization. The Houston Chronicle and the Daily News filed a lawsuit in August 2005 under 42 U.S.C. § 1983, arguing that the Ordinance infringed on their First and Fourteenth Amendment rights. In October 2005, the district court permanently enjoined the enforcement of the Ordinance, deeming it unconstitutional both on its face and in application regarding newspaper sales. The court noted the City's selective enforcement, allowing charitable solicitations while penalizing the newspapers for commercial activity. Although the City had not prosecuted the newspapers under the recently enacted 78-39, the court implied potential future enforcement.

The City appealed in November 2005 but voluntarily repealed parts of the Ordinance in January 2006, excluding 78-39. The standing of the newspapers to challenge the Ordinance was confirmed, with the court noting that mootness did not justify vacating the injunction since the City’s repeal was partial. The remaining legal questions include whether the district court erred in ruling 78-39 unconstitutional and in denying attorney’s fees to the newspapers. The City contended that the newspapers lacked standing regarding the repealed provisions, asserting that such claims were moot. However, the City acknowledged the Houston Chronicle's standing to challenge 78-39. The Daily News's standing was disputed based on its lack of evidence for engaging in prohibited street-vendor sales. The district court found that both newspapers had established standing due to their historical practices of street-vendor sales, meeting the requirements for showing injury, causation, and redressability.

The City’s attorney communicated in a 28 April 2005 letter that the City would prosecute the newspapers under section 78-39 of an ordinance, despite acknowledging potential constitutional issues with the ordinance's later-repealed permitting requirements under section 78-38. The letter emphasized the ordinance's intent to enhance safety for vendors operating in hazardous locations, such as busy intersections. The City issued citations to Houston Chronicle vendors at a specified intersection but indicated a reluctance to further prosecute under the repealed provisions, while affirming intent to enforce section 78-39. 

The Houston Chronicle established standing due to sufficient injury from the City's actions and the implications of the ordinance. The Daily News also demonstrated engagement in sales subjecting its vendors to potential prosecution under section 78-39, supported by evidence added to the record after the City’s notice of appeal and subsequent repeal of parts of the ordinance. 

Both newspapers showed evidence of constitutional harm due to a chilling effect on their First Amendment activities, meeting the injury-in-fact requirement. The courts cited relevant precedents indicating that it is unnecessary for a party to face actual arrest to challenge a statute that deters constitutional rights. Consequently, both newspapers satisfied the criteria for demonstrating specific injury and imminent prosecution if the ordinance is not enjoined.

A justiciable controversy exists when a plaintiff is committed to disobeying a law that a defendant intends to enforce. The City argues that its repeal of certain Ordinance provisions renders the newspapers' challenge moot, warranting the vacatur of an injunction. While the newspapers acknowledge the mootness of their challenge to the repealed provisions, they contend that the City should not evade the injunction through selective repeal. The court rejects the City’s mootness-based vacatur argument, noting that disputes concerning repealed legislation are typically moot. However, vacatur is appropriate only when mootness arises from circumstances beyond the losing party's control rather than voluntary actions. Citing U.S. Bancorp Mortgage Co., the court asserts that a party that causes mootness through its actions forfeits its right to vacatur. The court distinguishes the City’s cited cases, emphasizing that mootness in those instances did not result from the losing party's actions. The court also references its en banc decision in Staley, which denied vacatur after a defendant voluntarily complied with a judgment, reinforcing that vacatur is an extraordinary remedy dependent on specific facts and equitable considerations. The burden lies with the party seeking vacatur to demonstrate entitlement to this remedy.

The excerpt addresses several court cases related to the vacatur of judgments in situations where controversies have become moot. It distinguishes between voluntary actions taken to moot a case and those unrelated to the lawsuit, citing *Russman v. Bd. of Educ.*, *Khodra Envtl. Inc. v. Beckman*, and *Nat’l Black Police Ass’n v. Dist. of Columbia* as examples. The court finds that equitable factors in the current case do not favor vacating the district court’s injunction, highlighting that the mootness-causing actions were not the result of typical events. Unlike the aforementioned cases, the City has not demonstrated that its repeal of the relevant ordinance was unrelated to the district court's judgment, and the plaintiffs had achieved full relief before the ordinance was repealed.

The excerpt also discusses the ordinance 78-39, which the district court found unconstitutional, while the City argues that it is a permissible, content-neutral restriction aimed at public safety. The City asserts that the ordinance was designed to prevent solicitors from entering busy intersections, citing specific instances of injuries to street-vendors in similar contexts. However, the district court determined that 78-39 could not be justified as a valid time, place, and manner restriction due to its discriminatory enforcement against newspapers while allowing charitable organizations to solicit donations at the same intersections.

Ordinance 78-39 was deemed neither narrowly tailored nor serving a compelling government interest, as evidenced by the City’s own witnesses, including the Police Chief, who testified that it does not effectively promote safety. The holding occurred before parts of the Ordinance were voluntarily repealed, including those allowing charitable solicitations. Injunctive relief is evaluated for abuse of discretion, which occurs if a district court relies on clearly erroneous factual findings, erroneous legal conclusions, or misapplies its findings in granting or denying a permanent injunction. The district court affirmed that streets are traditional public forums and the sale of newspapers is protected under the First Amendment, necessitating that any content-based regulation must serve a compelling state interest and be narrowly drawn. 

While 78-39 was initially ruled unconstitutional, that ruling cannot be upheld after the repeal of provisions that created a discriminatory context, such as 78-34, which exempted youth organizations. In isolation, 78-39 is not facially unconstitutional; the burden of proving otherwise is significant in facial challenges. The claim that 78-39 is underinclusive is rejected, as prohibiting solicitations only at traffic-signal-controlled intersections, which are the busiest and most dangerous, is a reasonable public safety measure. Moreover, the district court mistakenly concluded that the City discriminates in enforcing 78-39 based on message content, as the City has not applied 78-39 to any newspapers, with citations pertaining to a different section of the Ordinance.

The newspapers acknowledge that the City has not enforced ordinance 78-39 against them, a fact not established by the district court. They argued that Texas Transportation Code 552.0071 requires the City to discriminate against them in the application of 78-39, as the state law allows municipal employees to solicit contributions under certain conditions, which would conflict with 78-39's application to non-charitable organizations. However, this argument was not presented in the district court or incorporated into their findings and conclusions. At oral argument, they referenced the Police Chief’s vague testimony about the City’s intention to discriminate based on solicitation type, but this is deemed insufficient to support a finding of "de facto discrimination." The court emphasizes that without an actual application of 78-39 against the newspapers, any potential future discrimination cannot justify upholding the district court's ruling, leading to the reversal of the injunction against 78-39.

Regarding attorney’s fees, the newspapers claim entitlement as prevailing parties under 42 U.S.C. 1988, arguing that the district court abused its discretion by denying their request without explanation. The City contends that the denial was within the court's discretion, referencing that courts may award fees at their discretion. The Supreme Court has indicated that a prevailing plaintiff typically should receive attorney’s fees unless there are special circumstances that render such an award unjust. The appellate court notes that a strong showing of special circumstances is required to deny fees, referencing relevant case law.

The district court denied attorney's fees to the newspapers without explanation or reference to any special circumstances, despite their success on all claims. Under Hensley, a plaintiff can be deemed a 'prevailing party' for attorney's fees if they achieve any significant benefit from the litigation. Although the district court's ruling on section 78-39 was reversed, the newspapers were still considered 'prevailing parties' and thus entitled to attorney's fees. The determination of mootness does not impact the entitlement to fees, which solely depends on whether the plaintiff has secured the primary relief sought. The newspapers obtained the primary relief in the district court and therefore are entitled to attorney's fees. The court reversed the denial of fees and remanded the case for their imposition. 

Additionally, the dispute arose after a related Texas state-court action where the Houston Chronicle successfully obtained a consent judgment that barred the City from prosecuting its vendors under a specific state law. The current ordinance, similar to that law, was amended to include section 78-39, which restricts solicitation in public roadways. A year after the consent judgment, the City cited Houston Chronicle vendors for soliciting without a permit, violating the ordinance.

The legal document outlines a case involving an ordinance that prohibits peddlers, solicitors, canvassers, and itinerant vendors from conducting business on public property without city authorization. The Houston Chronicle and the Daily News initiated legal action in August 2005, asserting that the ordinance infringed upon their First and Fourteenth Amendment rights under 42 U.S.C. 1983. In October 2005, the district court permanently enjoined the ordinance, declaring it unconstitutional both on its face and as applied, particularly regarding newspaper sales on public streets. The court noted a discriminatory enforcement pattern, allowing charitable organizations to solicit while prosecuting newspaper vendors for engaging in commercial activities. Although the City did not prosecute the newspapers under the ordinance, the court implied a likelihood of future enforcement. The City appealed in November 2005 but voluntarily repealed some provisions of the ordinance in January 2006, leaving section 78-39 intact.

The court first addressed the standing of the newspapers to challenge the ordinance. It concluded that both newspapers have standing, as they demonstrated established practices of street-vendor sales. The City argued that the controversy over the repealed provisions is moot, but the district court found the remaining challenge to section 78-39 still valid. Standing requires showing a concrete injury traceable to the defendant's conduct, with a favorable judgment likely to remedy the injury. Both newspapers met the causation and redressability criteria, and the court will examine their claims regarding injury related to both the repealed provisions and section 78-39.

The City’s attorney's letter dated April 28, 2005, indicated intentions to prosecute the Houston Chronicle and Daily News under Ordinance 78-39, despite acknowledging constitutional issues with previously applicable permitting requirements under Ordinance 78-38, which has since been repealed. The letter emphasized that the ordinance is a reasonable exercise of the City’s police power to ensure safety, particularly concerning vendors operating in dangerous locations. The City issued two citations to the Houston Chronicle's vendors at a specific intersection, signaling the potential for future prosecutions under 78-39. The Chronicle has established standing due to sufficient injury from these provisions.

In contrast, the Daily News has demonstrated that it engages in sales that would expose its vendors to prosecution under the same ordinance. Evidence presented during the appeal, including the Daily News's sales activities at the intersection after the City’s notice of appeal and subsequent repeal of parts of the ordinance, supports this claim. The court allowed the addition of this evidence since it reflects ongoing actions by the City, which occurred post-notice of appeal. The chilling effect on the Daily News's First Amendment rights, despite not receiving a citation, is notable. Both newspapers have proven specific injuries beyond mere subjective chill and have shown a risk of imminent prosecution if not granted an injunction, fulfilling the constitutional harm requirement as established in relevant case law.

The Daily News has met the injury-in-fact requirement similar to the Houston Chronicle, aligning with established Supreme Court and Fifth Circuit precedents. It is unnecessary for a party to face actual arrest or prosecution to challenge a statute that allegedly restrains their constitutional rights. A justiciable controversy exists when the plaintiff intends to disobey a law that the defendant is intent on enforcing. The City argues that its repeal of certain Ordinance provisions renders the newspapers' challenge moot, thus warranting vacatur of the injunction. While the newspapers acknowledge that their challenge to the repealed sections is moot, they argue against the City's attempt to evade the injunction through selective repeal.

Mootness typically applies to disputes involving repealed legislation, yet vacatur is only justified when mootness arises from circumstances beyond the losing party's control. If mootness is a result of a party's voluntary actions, that party forfeits the right to seek vacatur. The Supreme Court's ruling in U.S. Bancorp emphasizes that allowing a party to use vacatur as a means of collateral attack would disrupt the federal judicial system. The City cites two cases to support its position, but both are distinguishable. In Arizonans for Official English, the mootness arose from a state employee quitting, while in AT&T Communications of the Southwest, mootness resulted from state law superseding the ordinance, neither of which involved voluntary actions by the losing party.

The court's decision is supported by the en banc ruling in Staley, where an injunction against a religious display at a Texas courthouse was upheld despite its removal by the defendant-county. Vacatur is characterized as an "extraordinary" equitable remedy, requiring the party seeking it to demonstrate a strong entitlement to relief. In Staley, the defendant-county failed to meet this burden, leading to a distinction from other cases that allowed vacatur based on voluntary actions that were not directly related to the lawsuit. Key factors differentiating these cases include whether plaintiffs received full relief before the controversy was mooted and the impact of the district court's judgment on non-parties.

In the current case, the equitable factors do not favor vacatur. Unlike cases where mootness resulted from typical events, the City's repeal of the Ordinance appears to be a direct response to the district court's judgment, and the newspapers obtained full relief prior to the repeal. The Ordinance was specifically enforced against the newspapers, not against non-parties. Consequently, the court denies the request to vacate the injunction.

The City argues that the provision not repealed, 78-39, is a constitutionally valid, content-neutral regulation aimed at public safety by restricting solicitors in busy intersections. Although deemed unconstitutional, the district court found that 78-39 did not demonstrate a discriminatory intent and was justified by evidence of safety concerns related to street-vending activities in similar areas.

Ordinance 78-39 was created to limit solicitations strictly at traffic-signal-controlled intersections, aiming to narrow the scope of restrictions while ensuring alternative channels for solicitation remain available. A referenced case upheld a similar ordinance prohibiting solicitation from vehicles. Despite finding that 78-39 lacks content-based discriminatory intent, the district court ruled it could not be justified as a valid time, place, and manner restriction due to perceived discrimination in enforcement—specifically, allowing charitable organizations to solicit while prosecuting newspaper vendors. The court also determined that 78-39 was not narrowly tailored to the City’s stated interest in promoting safety and lacked a compelling justification for its differential treatment of solicitation types. The decision occurred before the City voluntarily repealed parts of the ordinance, including those allowing charitable solicitations.

In assessing injunctive relief, the court noted that a district court's discretion may be abused if based on clearly erroneous facts, incorrect legal conclusions, or misapplication of facts or law. Traditional public forums, such as streets, warrant protection for activities like newspaper sales under the First Amendment. To prohibit such activities, a regulation must serve a compelling interest and be narrowly drawn. The district court appropriately applied these legal standards to the ordinance and its enforcement against newspapers.

However, with the discriminatory context of the now-repealed provisions removed, the district court's finding of 78-39 as unconstitutional cannot be upheld. When evaluated in isolation, 78-39 does not appear to be facially unconstitutional.

A facial challenge to a legislative act is particularly difficult, requiring the challenger to prove that there are no circumstances under which the act could be valid. The court rejected claims that the law prohibiting solicitations at intersections controlled by traffic signals (78-39) is underinclusive and too narrowly tailored to serve public safety interests. These intersections are identified as heavily trafficked and dangerous, thereby justifying 78-39 as a reasonable measure for public safety. The district court's conclusion that the City discriminates in enforcing 78-39 based on message content was found to be erroneous; the City had never enforced 78-39 against the newspapers in question. Citations issued to the newspapers were under a different statute (78-38). Furthermore, the newspapers' argument that a Texas law (Texas Transportation Code 552.0071) obligates the City to discriminate against them was not adequately presented in the district court or included in their findings or briefs. The court generally does not consider issues raised for the first time at oral argument, and the references made by the newspapers lacked specificity to meet the required standards for consideration.

The Police Chief’s testimony about the City’s future enforcement intentions is insufficient to substantiate the district court’s finding of “de facto discrimination” or any as-applied constitutional violation regarding section 78-39. Although an issue of unconstitutionality may arise if the City enforces 78-39 against newspapers in the future, the current record does not support the district court's conclusion of unconstitutional application. Consequently, the order enjoining 78-39 as unconstitutional is reversed.

Regarding attorney’s fees, the denial is subject to abuse of discretion review. The newspapers claim they are entitled to fees as prevailing parties in a § 1983 action, arguing that the district court abused its discretion by denying this without explanation. The City contends that the denial was within the court's discretion under 42 U.S.C. § 1988, which allows courts to grant reasonable attorney’s fees at their discretion. The Supreme Court interprets § 1988(b) to favor prevailing plaintiffs in awarding fees unless special circumstances warrant denial, and courts have held that a strong showing of such circumstances is required for a fee denial. 

In this case, the district court failed to provide justification or reference any special circumstances for denying fees despite the newspapers prevailing on all claims. The determination of the newspapers as prevailing parties is supported by their success on significant issues, achieving the primary relief sought, which entitles them to attorney’s fees. Therefore, the denial of attorney’s fees is reversed, and the case is remanded to the district court for the imposition of those fees. The injunction against 78-39 is vacated, and the denial of attorney’s fees is reversed, leading to a remand for fee determination.