Soto v. City of Cambridge, 193 F. Supp. 3d 61

Paula F. Soto, founder of UPandOUT, distributed noncommercial flyers on cars parked on Cambridge public streets for years; she was told by a police officer on Dec. 12, 2011 to stop and informed her activity was littering.
Cambridge Ordinance § 9.04.050 (as enacted in 1992) and Mass. Gen. Laws ch. 266, § 126 (the "Defacement Statute") were cited by a 1994 City opinion letter as authority to prohibit placing materials on property; the letter addressed commercial advertising.
The City initially asserted the Ordinance/Statute barred leafleting on parked cars; the City later amended the Ordinance (Aug. 26, 2014) to expressly allow posting noncommercial handbills on privately owned motor vehicles in the public way.
The Commonwealth (Attorney General) declined to intervene or state a position on the scope or constitutionality of the State Defacement Statute.
Soto sued under 42 U.S.C. § 1983 seeking declaratory and injunctive relief, nominal damages, and attorneys’ fees; after amendment of the Ordinance, the City moved to join the Commonwealth under Rule 19.
The magistrate judge denied summary judgment and the joinder motion, concluding declaratory/injunctive claims were moot, disputed facts existed about whether the City had a pre-amendment policy, nominal damages could not keep the case alive, and joinder of the Commonwealth was not feasible.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness of declaratory and injunctive claims	Soto: case not moot because City may rely on § 126 to prohibit leafleting in future	City: Ordinance amended to allow noncommercial leaflets; enforcement under § 126 is speculative	Held: Claims for declaratory/injunctive relief are moot because Ordinance repeal removes a live controversy and § 126 enforcement is speculative
Whether original Ordinance prohibited leafleting on parked cars	Soto: Ordinance/statute do not apply to transient leaflets on cars; thus her rights were violated	City: Ordinance intended to address visual blight and covered leaflets on vehicles	Held: Disputed facts exist about whether City had a policy/custom pre-amendment; court refused to decide (would be advisory)
Whether § 126 applies to and/or is constitutional as applied to noncommercial leafleting	Soto: If § 126 applies it is unconstitutional	City: § 126 authorizes prohibition; must enforce Commonwealth law	Held: Court declined to adjudicate constitutionality or scope of § 126 (no advisory opinion; Commonwealth did not intervene)
Joinder of Commonwealth under Fed. R. Civ. P. 19	Soto: Not a facial challenge to statute; challenge is to City's interpretation/policy	City: Commonwealth has interest in defending statute and must be joined	Held: Joinder denied as moot and infeasible—Commonwealth immune from suit under Eleventh Amendment and has not consented to join

New England Reg'l Council of Carpenters v. Kinton, 284 F.3d 9 (1st Cir. 2002) (time, place, manner test for content-neutral restrictions on leafleting)
Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) (ordinance banning leafleting on parked vehicles likely unconstitutional absent nexus to litter)
Jobe v. City of Catlettsburg, 409 F.3d 261 (6th Cir. 2005) (ordinance barring leafleting on windshields without owner consent upheld)
Coll. Standard Magazine v. Student Ass'n of State Univ. of N.Y. at Albany, 610 F.3d 33 (2d Cir. 2010) (mootness bars consideration of repealed regulation's constitutionality)
Mangual v. Rotger-Sabat, 317 F.3d 45 (1st Cir. 2003) (mootness requires an actual controversy at all stages of review)