Collier v. City of Tacoma

Colo- manifest, suggest and the facts here is The injury However, estoppel. out a case for equitable nial has made drawn from inference can be one reasonable only "[u]nless facts, for the triers evidence, is a estoppel question Am. Jur. 2d Estoppel trial court." 28 or the jury (1966). Pierce Cy., Accord Litz v. 149, at 831-32 Waiver § (1986). feel we Accordingly, 723 P.2d 475 App. Wn. for recon- issue to the trial court to remand this compelled burden proper issue in estoppel light sideration of the as rehearing, be no need for There should proof. already fully developed. record is negli- is affirmed as to the sum, the Court of Appeals is also The Court of Appeals claim. misrepresentation

gent for equitable to the correct standard proof affirmed as court for is remanded to the trial However, the case estoppel. the estoppel and a reconsideration of of the facts review "clear, convincing evidence" cogent, utilizing issue standard. Brachtenbach, Smith, Guy, John-

Andersen, C.J., and Madsen, JJ., concur. son, and 3, 1993. August

Reconsideration denied July 1993.] En Banc. [No. 59442-2. Respondents, Collier, al, et

Michael Tacoma, Appellant. issue, Appeals. reli- estoppel Justifiable reverse the Court of to the we to relate Co., Regis Paper Thompson of fact. v. St. properly an issue for the finder ance is 219, 233-34, 685 P.2d 1081 Attorney, City Kouklis, Barker, Pat- William J. and John C. appel- Horst, Assistants, Bosnians, ricia and Heidi Ann lant. respondents. Kline, for

Adam City Andrews, of Bellevue Richard L. on behalf Municipal Attorneys, Washington amici State Association of curiae. Congress, posted Collier,a candidate for J. Michael

Guy, signs political campaign areas within in residential his primary city days prior to the 1990 more than 60 of Tacoma from residen- removed Collier's election. workers yards parking strips with two tial accordance posting preelection that restrict the ordinances Collier window. in areas to a 60-day campaign such signs his free ordinances violated Tacoma claiming sued Collier, in favor of judgment court entered The trial rights. certifi- accepted unconstitutional. We the ordinances holding and affirm in part Appeals cation from the Court reverse in part.

Facts Democratic Party's a candidate for the Michael Collier was District in Sixth Congressional for Congress nomination run held or in 1990. Collier had not previously of Washington a public figure He was not considered for elective office. any in the circles. Collier's opponent known in political or well Dicks, a 14-year Norm Representative election was primary incumbent. scheduled for September election was primary in December campaign his began plan

1990. Collier identified 1990. Collier fundraising February and began lack of his were campaign obstacles to greatest of the pri- the course funding. During name familiarity $29,000. a total of raised and spent Collier mary campaign, cam- $329,000 his primary Dicks spent Representative paign. resources, yard signs Collier determined his

Given his communicating means of the most cost-effective were 1990, the Collier May At beginning political message. The first yard signs. 700 2-sided assembled some campaign Collier 20 and 30. May outdoors between of these was posted in their Congress" signs "Mike Collier for placed supporters strips. front yards parking (TMC) and regu- 2.05.275 defines Code Municipal

Tacoma as signs The ordinance defines lates political signs. on real property out-of-doors displayed which signs "[a]ll for a individual any or election of to the nomination relating voted measure to be advocating any or office public political limits The ordinance election". general on at or any special of not more to a signs period of such political the posting than after the date of the days days to and prior 2.05.275(1).1 are intended. TMC election any Tacoma Code 6.03.070 Municipal prohibits person, firm, or from corporation posting any signs curbstone, any lamp street or or any public highway upon on tree, post, sign, pole, hydrant, bridge, thing street or other any upon any public highway publicly situated owned authorized street or or Tacoma, City except may within the as be property ordinances . PRO- . .

VIDED, HOWEVER, prohibition contained herein shall not apply political signs placed parking strips preceding primary installed general political or pursuant election where such signs are to the permission prop- of the owner of the erty abutting said parking strip and installed in such a man- ner as not to constitute a traffic hazard .... Real estate signs the sale or rent of the advertising property attached, stand or to which are and upon they they other attached to signs any building or sidewalk advertising the business carried on in the are building, from the exempt of this TMC 6.03.080. provisions chapter. ordinances,

Pursuant to these Tacoma Public Works De- Collier partment employees signs displaying removed "Mike for from Congress" yards residential and parking strips within the city Tacoma that were more than 60 posted days to the election. prior primary Benjamin Mr. Thompson, City Tacoma, for that Engineer testified he directed person- nel from his to all in the department pick up signs 2.05.275(1) provides: 1The full text of TMC "(1) political signs displayed sixty days prior Such shall not be more than days and seven after the date of the for intended. In cases where a election which general days primary election, signs election follows within 55 of a those for general may appear candidates whose names will on the in the election he ballot displayed during days general period up the interim to seven after the elec- political signs required tion. In all instances herein in which are to be removed days sign displayed, if within seven after the election for which the was signs removed, they subject City said are not will be to removal of Tacoma Provided, however, pro- Department. provision Public that this shall not Works political signs provisions hibit in areas where other of the OfficialCode of the legally advertising displays." of Tacoma allows the same as licensed outdoor testified Thompson Mr. city. of way2 throughout right from signs also removes commercial his department that are not permitted commercial areas since residential the ordi- understood that Mr. Thompson in those areas. signs per- for on-site commercial allows an exception nance He testified private property. the sale or rent of taining ordinances, he differentiates enforce the that in order to them. by reading and political signs commercial between temporary July seeking filed this action Collier en- the ordinances' order, an injunction against restraining the ordinances forcement, declaratory judgment was sub- unconstitutional, complaint fees. attorney Beritich, a Col- to include Joel plaintiff3 amended sequently from his had removed political signs who supporter lier also cited The amended complaint and parking strip. yard an additional source of protection 42 U.S.C. 1983 as § statutory 42 U.S.C. 1988 as the involved and rights § February fees. On attorney for the claim of basis Collier, holding in favor of judgment the trial court entered unconstitutional, Col- but denied were ordinances the trial fees. Tacoma attorney appealed claim for lier's ordinances, Collier cross- court's as to judgment fees. We attorney denial of the trial court's appealed and now the Court of Appeals certification from accepted in part. affirm in and reverse part

Issues First, do the three issues for review. This case presents ordinances Collier's free restrict unconstitutionally limitation that Tacoma's durational We hold rights? speech develop public "right-of-way” a Thompson as "that area within defined 2Mr. street, sidewalks, public for and dedicated for use of ment that is set aside Thompson Report Proceedings, that at 11. Mr. testified utilities." parking way public right the curb: 5 feet for the extends 15 feet from the sidewalk, into the homeowner's strip, and an additional 5 feet 5 feet for the yard. front collectively 3Hereafter, plaintiffs as "Collier". both are identified on the unconstitution- preelection posting Collier's to ally right political expression. restricts Second, err in the Tacoma declaring did trial court their in entirety? ordinances unconstitutional answer those only por- the affirmative hold unconstitutional tions of the Tacoma that restrict impermissibly ordinances political speech. the trial err when

Third, plaintiffs' did court it denied attorney for fees to 42 U.S.C. 1988? We request pursuant § attorney reverse the trial court on the issue of fees and of an remand for a determination award of fees consistent with this opinion.

Analysis I Tacoma ordinances under both the challenged amendments first and fourteenth to the United States Con stitution, 1, article section Consti Washington tution. The First Amendment shall provides "Congress . make no law . . the freedom of abridging speech". U.S. Const, amend. 1. The freedom is secured by the First Amendment "among fundamental personal rights and liberties which are secured to all by persons Fourteenth Amendment against abridgment State." Freeman,_U.S._, 5, 12, Burson v. 119 L. Ed. 2d 112 S. (1992) Alabama, Ct. 1846 (quoting 88, Thornhill U.S. (1940)). 1093, 84 L. Ed. 60 S. Ct. 736 Article section 5 of Washington provides "[e]very Constitution person may freely publish subjects, write and on all speak, being responsible right." abuse of that O'Day As we stated in 109 Wn.2d King Cy., (1988) 801-02, Coe, 749 P.2d 142 State v. (citing Wn.2d 364, 373-74, (1984)), "[t]his P.2d 353 court has a duty, feasible, where to resolve first under questions constitutional of our own state constitution before to provisions turning federal law." We do so because addition to our responsibil ity constitution, we must furnish a interpret Washington's "for predict rational basis counsel the future course of Gunwall, state decisional law." State v.

746 (1986). Utter, 808, P.2d The Prac- 720 76 A.L.R.4th 517 See Decision-Making tice in State Constitutional- Principled of (1992). L. Rev. Experience, ism: 65 1153 Washington's Temp. and that the free clauses of state recognize speech effect, in and but wording federal constitutions different in Washington the result reached cases by previous methodology much of the federal for general applica- adopted The here tion to state constitutional cases. federal cases cited in our used of guid- and decisions are for prior purpose and the result the court compel ance do not themselves Michigan Long, state See v. reaches under our constitution. (1983); 1032, 1201, L. S. Ct. 463 U.S. 77 Ed. 2d 103 3469 (1988). 454, Mesiani, 456, v. 110 755 P.2d 775 Seattle Wn.2d mind, these we turn to our analysis With statements the Tacoma ordinances.

II The implicate Tacoma ordinances several concerns free speech jurisprudence: regulation political speech, our forum, in a and speech public regula regulation political The restricted speech. speech tion based on the content of is Tacoma Code sections 2.05.275 6.03.070 Municipal re signs" The defines speech. code political "political may in which such be place posted. stricts time and may speech Wherever the extreme perimeters protected he, Amendment protects political speech, it is the First clear 455, Brown, 467, 263, 447 Ed. 100 Carey see U.S. 65 L. 2d (1980), it other giving greater protection S. Ct. 2286 over Metromedia, 490, Inc. v. forms of San 453 U.S. speech. Diego, (1981). 800, 513, 69 L. 2d 101 S. Ct. 2882 Ed. constitu afforded has its "fullest and tional protection political the conduct of cam precisely most urgent application Monitor Co. Roy, office." Patriot paigns L. Ed. 2d U.S. S. Ct. ordi

The second feature of important in a restrict traditional they political speech nances traditional includes those public forum. The forum " or fiat have by long by government 'which tradition places " assembly parks, debate,' been devoted to such as streets Perry supra (quoting Freeman, and sidewalks. Burson v. at 13 Perry Ass'n, Educ. v. 37, 45, Ass'n Local Educators' 460 U.S. (1983));Hague 794, 74 L. Ed. 2d 103 S. Ct. 948 v. Committee Org, 496, 515, 83 1423, 59 Indus. 307 U.S. L. Ed. S. Ct. 954 for (1939). Vanishing Buchanan, See also The Case the Public of parking strips4 Forum, 949, 1991 U. Ill. L. Rev. 951. The supporters placed political signs which Collier and his his he part between the "streets and sidewalks" and are thus of the public places occupy spe "traditional forum". Because these a position protection, cial in terms of First Amendment the government's ability expressive activity very to restrict Barry, limited. 312, 318, 99 Boos v. 485 U.S. 333, 108 L. Ed. 2d (1988). S. Ct. 1157 political signs

Since the Tacoma ordinances do not ban altogether, analyze place, we time, the ordinances as e.g., Playtime See, manner Theatres, restrictions. Renton v. (1986). Inc., 41, 46, 475 U.S. 29, 89 L. Ed. 2d 106 S. Ct. 925 Supreme The United States Court has held that even in a government may impose forum, the reasonable re place, protected speech, time, strictions on the and manner of provided narrowly the restrictions are neutral, content significant governmental tailored to serve interest, open ample leave alternative channels of communication. Against Ward Racism, v. Rock 781, 791, 491 U.S. 105 L. Ed. (1989);Perry 661, 2d 2746 Ass'n, 109 S.Ct. Educ. 460 U.S. at diverge Supreme 45. We from the Court on the state interest place, element time, test, and manner "as we believe Const, speech imposed restrictions on can be consistent with only upon showing compelling § art. state interest."5 concerning 4Collier political also raises an issue the restriction of private property. adequately briefing, This issue was not addressed in the is not necessary case, to our decision this and thus will not be discussed further. prior holdings required 5Our have counsel to discuss at least the factors enun (1986) Gunwall, ciated in State 106 Wn.2d 720 P.2d 76 A.L.R.4th 517 they applicability when assert the of our state constitution. Counsel's failure in normally preclude this case to discuss these factors would our consideration of the Wethered, 466, 472, state constitutional issues. State v. Wn.2d 755 P.2d 797 Share, (1986), P.2d Bering dismissed, 479 U.S. 1050 The broad of language cert. 1, 5 compared Const. art. as with federal constitution § this result. compels Bellevue Washington

Tacoma and amici curiae of Municipal Attorneys State Association argue constitutionally Tacoma ordinances are restric- permissible time, and manner of political speech. tions on place, time, and man- 3-part test disagree. Applying place, above, ner we conclude that Tacoma's regulations outlined limitation on the preelection posting durational Our analysis is unconstitutional. ordi- nances under each element and manner test follows. Neutrality

Content Code The trial corut held that Tacoma sec Municipal content-neutral, in that tions 2.05.275 and 6.03.070 are "not and regulate 'political' signs." define they expressly ordinances amici that the are content-neutral argue — conveyed not the regulate message because the does it claims the conveyed. the method is Collier only regu they ordinances are based because define content class Constitutionally as a of expression. late political not or be may manner restrictions permissible matter of subject speech. based either the content or upon N.Y., Inc. Public Serv. See Edison Co. Consolidated of S. 447 L. Ed. 2d 100 Ct. Comm’n, U.S. 65 (1980). are pre- Content-based restrictions on speech 2326 (1988). (1986), Share, Bering 721 cert. of P.2d 918 Citation (1987) dismissed, post-Gunwall enough. Bering U.S. is not Because is a might analysis, it not to call for such an case Gunwall be construed without analysis reason, only, require separate analysis. this in this case we will not a For in to the state constitutional issue. For of nonexclusive factors Gunwall reach cases, this court have the benefit of a state constitu future we stress that must meaning of argument to that of assistance the court determine tional is language claim there are as it to the state constitutional and whether used relates scope language our constitutional than that should determine factors other Utter, Decision-Making provisions. Principled in State Con The Practice See Temp. Washington's Experience, L. Rev. 1160-63 stitutionalism: unconstitutional and are thus to strict sumptively subject Renton, scrutiny. 46-47; Freeman, at Burson v. 119 L. Ed. 2d review, at 13-14. Under that intense level of government must that its regulation show is to serve a necessary compel- ling state interest and that it is drawn to achieve narrowly Perry Ass'n, end. Educ. 460 U.S. at 45.

The Tacoma ordinances do not fit into either neatly content-based or the content-neutral category. Our review of the case law on this commentary subject indicates See, the distinction is not always Stone, transparent. e.g., Content and the Regulation Amendment, First 25 Wm. & (1983-1984). Mary L. Rev. 189 whether a determining restriction is content based, neutral or content the Supreme Court has held that "[gjovemment regulation of expressive is content activity neutral so it long as without 'justified reference to the content of the regulated speech.'" Ward v. Racism, Rock Against at U.S. 791. While the Tacoma ordinances do not regulate political signs terms of view- describe and point, they regulate permissible sign posting terms of subject matter. Subject-matter restrictions are not ideas, directed at "particular or items infor- viewpoints, mation, but at entire subjects expression." Stone, 25 Wm. & L. Mary case, Rev. at 239. In this political signs a subject restriction 60-day "out-of-doors on real prop- erty", whereas on-site commercial signs identifying prop- erty for sale or for rent are 2.05.275; not. TMC TMC 6.03- .070, .080. How long sign may be maintained depends the kind of upon seeks to The trial message sign convey. court found that Tacoma Public Works Department person- nel have to read the in order to determine signs whether they are at a prohibited particular time.

The United States Court has held that an Supreme ordi nance is content based if it between distinguishes permissible at a impermissible signs particular by location reference Metromedia, to content. Inc. v. San 453 Diego, 490, U.S. 516- 17, 800, 101 S. 69 L. Ed. 2d Ct. (1981); 2882 FCC v. League of Voters, 364, 383-84, 278, Women 468 U.S. 82 L. Ed. 2d 104 S. Ct. 3106 noted, As one commentator the United States 750 regulations of content-based prohibition Court's

Supreme a first amend and on grounds protection based "both on equal (Footnotes omit forum." access to an open grant equal ment ted.) Council v. Vin Note, Taxpayers Members Sign Prohibiting Temporary Constitutionality The cent: Con to Advance Local Aesthetic Public Posting Property (1984-1985). ques 208-09 L. Rev. cerns, 34 De Paul defined within the classes whether all those tion is "not but, rather, whether the classifica equally state are treated Stone, Americana: Speech Fora itself is permissible." tion 233, 276. As the Places, Supreme 1974 Ct. Rev. Sup. Public n.3, at 13 Freeman, 119 L. Ed. 2d in Burson v. Court stated Fourteenth Amendment restrictions raise content-based differen restrictions concerns because such protection equal Metromedia, 453 U.S. at See speech. tiate between types (billboard over commercial favoring ordinance 517-21 neutrality); Amendment violated First noncommercial speech 212, 92 S. Ct. L. Ed. 2d 408 U.S. 33 Mosley, v. Dep't Police (ordinance (1972) near a school picketing that prohibited picket labor peaceful expressly exempted but that building, Needham, 764 F.2d unconstitutional); Matthews held ing, 1985) (town (1st that barred posting bylaw Cir. the post but permitted on residential property political signs held unconstitutional facially commercial signs of certain ing to the content, as opposed with was concerned bylaw because Middlemark, speech); People or manner of 1979) (ordinance (Dist. Ct. 760, 420 N.Y.S.2d 100 Misc. 2d signs other but allowed signs political which proscribed v. Can scrutiny); Antioch to strict subjected areas residential (N.D. Cal. F. Serv., Supp. Graphic didates' Outdoor limita 1982) a 60-day imposed ordinance which (municipal discrimi signs commercial but not on on tion in violation of rights of First Amendment in the exercise nated clause). ordinances, by regu The Tacoma the equal protection matter, viewpoint albeit in terms of subject posting lating sign restrictions. realm of content-based neutral, fall within Tacoma and amici that in content neu- argue determining read, the is not the must be trality, question signs whether the the out of signs but whether of Tacoma prohibited Ward, Tacoma disapproval message promoted.6 Citing claims the content neutral- principal inquiry determining or manner cases is whether ity govern- dis- ment has a of "because of adopted regulation speech Ward, it 491 U.S. at agreement message conveys." with Non-Violence, Clark v. Creative (citing Community for (1984)). 288, 295, 468 U.S. 82 L. Ed. 2d 104 S. Ct. 3065 Tacoma contends that since ordinances serve a purpose content, unrelated to a the ordinances are sign's content Ward, neutral. See at 791.

Collier that this standard is too and that argues subjective, of showing "improper legislative intent" would be practi cally to make. We Court has impossible agree. Supreme recognized "even aimed at regulations proper govern mental concerns can unduly restrict the exercise of rights protected the First Amendment." Star & by Minneapolis Rev., 575, 592, Tribune Co. v. Minnesota Comm'r 460 U.S. of cases, 75 L. Ed. 2d 103 S. Ct. In some fact that a is content based and invalid be regulation will Schuster, from its apparent face. See Simon & Inc. v. Mem Bd.,_U.S._, bers New York State Crime Victims L. (1991) J., Ed. 2d 112 S. Ct. 501 concur (Kennedy, cases, ring). other a censorial "will not be justification from the face of a which draws distinc apparent regulation content, tions based on and the tender a government will plausible justification unrelated to the suppression Freeman,_U.S._, or ideas." 2d Burson v. 119 L. Ed. (1992) 23, 112 J., S. Ct. 1846 (Kennedy, concurring). Although neutral, the Tacoma ordinances are define they viewpoint — and matter regulate specific subject political speech. purpose sign provide 6The code is "to minimum standards stated of Tacoma's life, health, safeguard property regulating welfare and and control materials, construction, location, electrification, ling design, quality sign maintenance of all structures." TMC 2.05.020. distinction, neutral, This content-based while viewpoint it certain inevitably because favors particularly problematic incumbent, exam- candidates over others. The groups has already acquired familiarity name therefore ple, from on greatly political signs. benefits Tacoma's restriction hand, on The underfunded other who relies challenger, the to his before the inexpensive yard sign get message pub- is at a therefore that while disadvantage. lic We conclude goals, they require aesthetic interests are careful legitimate free interests because scrutiny weighed against speech when subjective high impermissible their nature creates a risk of a foot- stronger stands on speech "[Djemocracy restrictions. against when First Amendment interests ing protect courts intrusion, rational merely than legislative deferring rather Metromedia, at area". 453 U.S. in this legislative judgments 519. Theatres, Inc., Renton v.

Finally, Playtime cites 47, 29, 106 (1986), L. Ct. 925 for the 41, 475 U.S. 89 Ed. 2d S. may that an content-based statute be apparently proposition targeted on at the content if the restriction speech neutral Renton, In the Court Supreme speech's secondary effects. zoning of a ordinance constitutionality considered the theaters to one area of town. restricted the location of adult it not was held constitutional because did ordinance Rather, of the films shown at theaters. target content effects that adult secondary the ordinance was aimed at Renton, at 46. community. the surrounding theaters have on did not a analyze do not find Renton since it dispositive While a distinc content-based restriction on political speech. may adult and other kinds of theaters tion between theaters draw "secondary analysis, based on a effects" be permissible a similar distinction between commercial ing speech political speech turns the favored status of political speech a decline to draw such distinction on its head. We therefore is at on in a forum political speech where restriction issue. are viewpoint Tacoma ordinances summary,

neutral, they in that classify permis- but are content based conclu subject Ordinarily sible terms of matter. this speech time, sion would take the ordinances out of the domain of restrictions, Metromedia, and manner 453 U.S. at 516- place, 17, and would instead a strict Bur require scrutiny analysis. Freeman, Ass'n, son v. 119 L. Ed. 2d at 13-14. Perry See Educ. conclude, however, U.S. at 45. We that the Tacoma ordi can time, nances be reviewed under a and manner for place, mulation. We hold that and manner restrictions neutral, that are but viewpoint subject-matter based, are valid so as long they narrowly tailored to serve state compelling interest leave alternative open ample channels of communication. This formulation of the standard of review with free comports under speech jurisprudence both article section 5 Constitution, of the Washington Bering Share, (1986), 721 P.2d 918 cert. dis missed, (1987), 479 U.S. 1050 and the first amendment United States Freeman, Constitution. See Burson v. 119 L. Ed. 2d J., at 23 (Kennedy, concurring) (recognizing time, place, cases, and manner since regulation's justifica tion is a "central the inquiry", interest test compelling may be one analytical detect, device to in an objective way, whether the asserted justification is in an fact accurate of description law).7 the manner, and effect of the In this purpose we are able to balance the interests while competing recognizing the burden of a justifying restriction on remains on the speech Burson, State. See (Stevens, J., at 32 dissenting).

Compelling State Interest Inasmuch as we have dealt with the first element time, place, and manner content analysis, neutrality, we next discuss the state interest element. the Applying above, standard enunciated Tacoma must its prove requiring judicial scrutiny regulations 7For cases careful of to ensure that no exist, of N.Y., covert content-based restrictions see Consolidated Edison Co. Inc. v. Comm’n, 530, 319, (1980); Public Serv. 447 U.S. Ed. 2d 65 L. 100 S. Ct. 2326 (1975). Jacksonville, 125, 95 205, 45 Erznoznik v. 422 U.S. L. Ed. 2d S. Ct. 2268 See Note, City Taxpayers Constitutionality Members of the Council for Vincent: The Prohibiting Temporary Sign Posting Property on Public ToAdvance Local Aes (1984-1985). Concerns, 197, thetic 34 De Paul L. Rev. ordinances, taken drawn to serve a together, narrowly a inter- state interest. To constitute compelling compelling est, the must be a fundamental one and the purpose legisla- a the tion must bear reasonable relation to achievement Ctr., the Adult Entertainment Inc. v. Pierce purpose. Cy., 435, 439, 1102, denied, 115 Wn.2d Wn. 788 P.2d review App. (1990). 516, 524-25, 4 Rock, See Bates v. Little 361 U.S. (1960). 480, L. Ed. 80 S. Ct. 412 We determine the 2d by reasonableness of a and manner restriction regulation interest advanced balancing public rights. the extent of the restriction on free speech against Lotze, 52, 58, 811, 593 P.2d dis- appeal State v. Metromedia, missed, (1979); 444 U.S. 921 Inc. v. San Diego, 800, 69 L. Ed. 2d 101 S. Ct. 2882 453 U.S. that its interest aesthetics and argues city interest, is a state and that

traffic safety compelling tailored" to serve that interest. "narrowly ordinances were aesthetics has been determined to be disagree. Although interest, Members Coun. significant governmental Vincent, 80 L. Ed. 2d U.S. Taxpayers for (1984), determined to an 104 S. Ct. 2118 it has not been be restrictions on sufficiently justify interest compelling in a forum. The record in this case does not such a result. While Tacoma and amici cite justify Lotze, Vincent and State v. neither deci supra, support, their that aesthetics and traffic safety sion supports premise outweigh are state interests sufficiently compelling on Collier's free restrictions imposed speech. Vincent, the Cotut ordinance pro- upheld municipal Roland

hibiting posting any signs public property. a candidate the Los Angeles City Vincent was for election to utility poles His were attached to political signs Council. ordinance, to the his were throughout city. Pursuant the ordi- The Court concluded that poles. removed from Vin- nance was valid and manner restriction. case in cent, Vincent is from this two distinguishable at 815. First, Vincent involved a law that respects. pro- important Second, all of content. signs, regardless hibited the of posting utility poles upon signs posted Vincent's were were forum . Vincent, not considered at part traditional Note, 814. See also Members of the Council v. Taxpayers for Vincent: The Constitutionality Prohibiting Temporary Sign Posting on Public To Advance Local Aesthetic Property (1984-1985) Concerns, 34 De Paul L. Rev. (analyzes Vincent as misapplying First Amendment and the precedent primacy political speech). Lotze,

In State v. and, we held that aesthetics to a supra, extent, traffic greater safety were interests com- sufficiently to the incidental restrictions on the pelling outweigh appel- lants' exercise of Lotze, First Amendment at 58-60. In speech. Lotze, the State sought remove billboards adjacent to a highway under the authority Washington's highway (RCW sign 47.42), law which generally prohibits all signs interstate, visible from or scenic primary systems as except permitted under the act. The listed under exceptions the act include signs the sale or advertising lease of property upon which they are located. We stated that unlike on-premise business and realty for sale signs, political messages such as the signs involved in Lotze are addressed "to the general universality political ideas" and need not be linked with a specific Lotze, site order to derive at 59. meaning. We held that the statute met the test for a state restraint on First Amendment because rights appellants' was not controlled as to content and because alternative means of communicating Lotze, such views were available. at 60. Metromedia, Court in Supreme n.18, 453 U.S. at 513 overruled its of State v. prior summary approval Lotze, 92 Wn.2d dismissed, P.2d appeal U.S. 921 that San Finding Diego's aesthetic interests were sufficiently its significant justify ban on off-site commer- cial but insufficient advertising, were to warrant a ban on noncommercial the Court signs, observed that some deci- sions, Lotze, State including have failed to supra, give adequate weight to the distinction between commercial and noncommercial Metromedia, 453 U.S. at 513 speech. n.18. Other courts have also criticized the in Lotze. In analysis 399, 628 P.2d Coun., 52 Or. App. Van v. Travel Information held a (1981), 60-day Court of that Oregon Appeals to highways on temporary political signs adjacent restriction majority The court relied on a unconstitutional. Van was in order to conclude were to Lotze contrary decisions which to justify sig- interests were insufficient that aesthetic 60-day nificant restriction on political speech imposed Van, at 416. campaign signs. limitation on political should not be con with Collier that Lotze agree We to from our in Lotze depart holding on this issue. We trolling are safety it that aesthetics and traffic implies the extent justifying greater politi interests restrictions compelling that commercial speech. recognize cal than on Lotze, do ordinances, unlike the statute at issue Tacoma's Given sign posting. not completely prohibit political however, has Tacoma speech, status of preferred political clean, litter- maintaining that its interest failed to show its dis sufficiently justify free community8 compelling Metromedia, San of political speech. treatment parate billboards, others, not was allowance of some but Diego's aesthetics, that its interests in traffic safety evidence Metromedia, "substantial", fell short of "compelling". while Likewise, treatment of disparate U.S. at 520. Tacoma's indicates that signs commercial over signs political on-site not compelling. interest in aesthetics is but significant, its cre- Furthermore, yard signs has not shown that that There no evidence ate a substantial traffic hazard. was or blocked were hazardous to traffic signs of Collier's any no that yard signs access. Mr. knew of Thompson pedestrian sidewalks, lines or or utility poles, found blocking had been yard signs claim that it restricts political streets. Tacoma's state interest" "compelling to a on behalf of 60-day period Once political in traffic lacks safety evidentiary support. basis, "it is difficult on a temporary are allowed signs times sig- at other signs how imagine prohibiting political at 412. Van, 52 Or. safety." App. nificantly promotes highway 8Indeed, good argues candidates self-interest and sense of Collier yard signs. already regulate political serves to state interest must

A that serves a regulation compelling be tailored to serve that interest. Ward Rock narrowly 791, 105 661, 109 Racism, 491 U.S. L. Ed. 2d S. Against 233-34, (1989); Share, Bering Ct. 2746 (1986), dismissed, P.2d 918 cert. 479 U.S. 1050 tailored narrowly trial court found that neither ordinance is its to serve a state interest. Tacoma compelling argues since they restrictions drawn allow narrowly of a political campaign. to be the duration posted We disagree.

The Tacoma ordinances restrict political expression durational on the posting limitations imposing preelection of Tacoma cites two cases for political campaign signs. authority that limitations have been preelection sign upheld. Neither decision a provides satisfactory uphold rationale such In ing Schwartz, restrictions. v. Estate Huntington (Dist. 836, 839, 2d 1970), Misc. 313 N.Y.S.2d 918 Ct. the court held that a 6-week limitation on was political signs within the of the scope municipality's powers. police court found that could use or consider aes municipality thetic considerations in such applying power. People Cf. (Dist. Middlemark, 100 Misc. 2d 420 N.Y.S.2d 151 1979) Ct. similar (distinguished that a Huntington, holding sign ordinance was unconstitutional it because made an distinction impermissible between political signs (D. Goshi, and other In signs). Ross v. 351 F. Supp. 1972), Hawaii restriction, court upheld 60-day stating only ordinance was a of the con "proper balancing flicting interests". We find these decisions unpersuasive since they lack a discussion of the First Amendment equal considerations at issue. protection

Other courts have held that durational limita- preelection tions on are unconstitutional. political campaign signs Serv., Antioch v. Candidates' Outdoor 557 F. Graphic Supp. (N.D. 1982), Cal. the court held that the Antioch munici- ordinance, pal which banned the posting temporary politi- cal signs everywhere in the for all but a city 60-day period election, an in unconstitutionally before discriminated rights equal exercise of First Amendment violation the ordinance as clause. The Antioch court viewed protection 60-day with a political speech, temporary, "ban" on general Antioch, at 56. See also Van to an election. suspension, prior Coun., (60-day at 416 supra v. Travel limitation Information of the First Amendment light restrictive unnecessarily and the State's interests to be sought interests involved 426 F. advanced); Hempstead, Supp. Orazio North (E.D.N.Y. 1977) (ordinance limited the posting polit- to 6 to an election was invalidated prior ical wall weeks Blumoff, See protection grounds). generally equal After Amendment, Controls and the First 28 St. Sign Metromedia: Louis U.L.J. 194-96 restriction, typical

Tacoma's unlike the 60-day restriction, does not to determine attempt and manner rights whether and at what times the exercise of free speech the normal uses of a tradi compatible incompatible or with ordinances, like the ordi tional forum or The Tacoma place. Antioch, Van, Orazio, nances in restrict unnecessarily of cer candidacy preelection posting signs promoting on an up tain individuals or a certain advocating viewpoint has not shown that its ballot coming proposition. if evenhandedly restrictive time of 60 even period days, signs, reasonably adequately to all applied temporary Before the City for the exercise of provides political speech. on political durational hmits or other restrictions may impose interests, it must show that it is speech to advance aesthetic aesthetic concerns seriously addressing and comprehensively Antioch, 557 F. at 60. Supp. with to its environment. respect (D. 1358, 1362 Accord, Tauber v. 695 F. Longmeadow, Supp. 1988). Metromedia, San 453 U.S. Diego, Mass. See also Inc. v. (Bren (1981) 800, 490, 528-31, 69 L. Ed. 2d 101 S. Ct. (failure to nan, J., in concurring judgment) provide adequate restriction on merits protected activity for a justification restriction). made no showing invalidation of the Tacoma has it is seriously comprehensively on the record that other than safety aesthetic or traffic concerns addressing question. the ordinances in through are not in- the ordinances Tacoma is correct

While alter- "imaginable there be some may because simply valid Ward, on speech", be less burdensome might native Albertini, 472 U.S. United States v. U.S. at 797 (quoting (1985)), the ordi- S. Ct. 2897 L. Ed. 2d for Collier's free nances fail to provide adequately political speech, the status accorded preferred Given rights. in other jurisdictions and the persuasive authority issue, conclude the Tacoma ordi- have dealt with this we state narrowly compelling nances are not drawn to serve interests, we hold that interest. the balancing competing in and traffic safety, Tacoma's interests aesthetics regulatory Collier's record, on the do not outweigh as demonstrated from our decision right speech. depart case. to the extent it conflicts with our decision this Lotze Alternative Channels of Communication state The third and final element of both the federal and time, constitutional tests that a and manner requires place, channels for commu- restriction leave alternative open ample at 234. Ward, 791; Bering, nication. 491 U.S. at [his] The trial court found that Collier had not "sustained an that the ordinances do not leave ... proof open burden Collier error to assigns alternative means of communication". him. We on proof the trial court's burden placement with Collier. agree reasonable restrictions may impose

Government restric time, provided or manner of place, speech, Tacoma above. Because tions meet the standards enunciated time, as reasonable place, seeks to the ordinances uphold it has the bur speech, and manner restrictions on political time, and manner place, den of each element of meeting Collier erred in assigning test. We conclude the trial court alternative chan "availability the burden of proving communication", the third element of nels of 234; Ward, 491 106 Wn.2d at Bering, and manner test. See Tacoma, and rests That with properly U.S. at 791. burden has failed to meet it. argue politicians Both Tacoma and amici have through ways expressing other numerous themselves posting signs. dispute Collier does not media than right purchase that he had the to radio and television time engage argument to in direct mail. His is that these effectively un alternative modes of communication were challenger. Based available to him as an underfunded agree record, In our review of the we with Collier. Collier's yard sign cost-effective, case, the was the most realistic familiarity. increasing his name Because means method of entirely fungible, political speech political are not special advantages seeking yard sign offers to the candidate yard signs relatively office.Political are cost-effective high degree. Supp. Antioch, 557 F. and can be localized to City, (citing at 59 (9th Baldwin v. Redwood 540 F.2d (1977)). 1976), denied, In Cir. cert. 431 U.S. 913 Col "ample case, alternatives" are lier's the issue is not whether they practically available, are available. Alter but whether they if are far from satisfac natives are not "alternatives" "summary tory. Thus, the Metromedia, 453 U.S. at 516. deprive political sign days can of a for even a few seizure liberty sign's important Amendment owner of an First Baldwin, interest." 540 F.2d at 1374. Given record be political us, we conclude that Tacoma's restrictions on fore adequate sign posting did not afford Collier alternative of communication. channels summary, concur with the trial court that the Tacoma we and manner restrictions.

ordinances are invalid prove Tacoma has failed to that its interests aesthetics and safety sufficiently compelling justify the restric- traffic rights expression. imposed political tions on Collier's prove left Tacomahas also failed to that its restrictions Collier ample his mes- alternative channels which to communicate sage. conclude,therefore, that durational limita- Tacoma's campaign signs preelection posting on the tion provisions Washington violates the free ofboth Constitutions. the United States

III declaring in both erred the trial court Tacoma claims entirety. agree. We in their ordinances unconstitutional parties' dispute on section focused indicates that record (1) as on the ordinance a 2.05.275, TMC rather than of (2) (size limita- raised to section whole. No issue was as (3) tions), property (requiring private of or consent section owners). Similarly, only portions those of TMC 6.03.070 and political expression at that affect are issue. .080 "only general part an As a rule of enactment that leaving constitutionally invalidated, will rest infirm be Advertising Orange, 861 F.2d intact." National Co. v. (9th 1988). Airlines, Brock, v. 480 Cir. See Alaska Inc. (1987). 678, 684, 2d 107 S. Ct. We U.S. 94 L. Ed. only provisions of the ordinances hold unconstitutional those impermissibly scope political restrict the through place preelection limitations on the time and for the political signs. posting of in aesthetics Tacoma's interests safety justify reasonable, con traffic are and sufficient aspects regulation of the noncommunicative tent-neutral signs, spacing, size, as and consent of the such private property owner. judicial to the need for restraint in sensitive power govern-

intruding police by on the exercise of the local regulate public health, land uses interest ments to in the safety, Consequently, holding not com- our does welfare. long change requirements pel postevent as as a removal requirements apply to all tem- are reasonable and such political campaigns, porary events, as home sales and such political speech renting. preelection inter- While residential municipahty's regulatory may outweigh in interests a ests present postevent given case, are not those same interests by municipahty's may outweighed demonstrated be safety. See v. or traffic Baldwin Red- interests aesthetics (10-day requirement City, supra postelection removal wood upheld).

IV holding assigns that the Collier error to the trial court's publicity representation "special circumstances" of trial attorney preclude an fees under 42 the ACLU award requests § also additional fees for the U.S.C. 1988. Collier purposes appeal. of this party prevailing §

A in an action under 42 U.S.C. may attorney pursuant reasonable fees to 42 recover § Seattle, 1988. U.S.C. Jacobsen " prevailing plaintiff ordinarily P.2d 653 A 'should attorney's special an fee unless circumstances would recover " unjust.' (quoting Jacobsen, at 675-76 render such an award Piggie Enters., Inc., 400, 402, 19 Park 390 U.S. Newman (1968)). L. Ed. 2d 88 S. Ct. 964 case, the instant the trial court ruled favor They plaintiffs "prevailing par Collier and Beritich. purposes court, ties" for the of the statute. The trial how publicity gained repre ever, identified the suit and ACLU "special as circumstances" which warranted denial sentation attorney disagree. Runyon Fasi, of an award of fees. We (D. 1991), plaintiff requested Supp. 762 F. attorney 280 Hawaii factually pursuant § in a fees to 42 U.S.C. 1988 city challenging constitutionality action of a similar political signs. prohibited outdoor ordinance which Runyon court addressed the identical issue of service agree representation "special We with as a circumstance". Runyon prevail fact that the court's conclusion that the ing by public party represented firm associ was service or Runyon, by public 762 ation funded funds is irrelevant. See Housing Supp. (citing Bd., v. Mobile F. at 286 Watkins (5th 1980)). publicity, trial Cir. As to the issue of F.2d accept urges trial court's denial of Tacoma this court to attorney proper court, trial use of discretion. The fees as sys finding judicial however, Collier used the made no political purposes. gain publicity tem to for argues the trial that should this court reverse Tacoma attorney limit the fees, on the the court should court issue attorney performed from the amount of fees to reflect work rea- Tacoma was amended. the complaint after which point complaint filed the amended respondents that until sons for authority statutory as 42 U.S.C. cited § for attor- claim any had no notice fees, Tacoma attorney respondents' had notice of disagree. ney fees. original of Collier's filing with the attorney for fees claim an to add of his complaint amendment Collier's complaint. fees attorney obtaining authority source of additional notice to sufficient that Tacoma had alter the fact does not for attor- request to Collier's an adequate response prepare fees. ney fees the requested to resolve is whether

The final issue found that the plaintiffs' The trial court reasonable. were of this in the prosecution 99.3 hours spent had attorney reasonably have been action, expended and "said hours court The trial of the result obtained." in view necessarily rate attorney's hourly $150 the plaintiffs' also found that These performed. for the work was reasonable compensation these not disturb uncontroverted. We will were findings findings appeal.

Conclusion Collier's restrict impermissibly The Tacoma ordinances of article section in violation right political expression first and fourteenth Constitution, and the of the Washington We hold Constitution. to the United States amendments ordinances of the Tacoma portions unconstitutional those posting limitations on the preelection durational impose of a rea- a determination We remand for signs. of political attorney determination of fee, to include a attorney sonable fees on appeal. Johnson, JJ., concur. Smith, and Dolliver,

Utter, — has this court years, For 15 (concurring) J. Durham, con- state of concept independent the difficult with wrestled it should under The circumstances analysis. stitutional divided many opinions of subject has been the be applied 764 1986,

considerable this court unani- acrimony. Finally, criteria aid in on a list of six nonexclusive to agreed mously when state constitutional is determining analysis appro- 54, 808, 720 P.2d 76 106 Wn.2d Gunwall, priate. State v. (1986). thereafter, A.L.R.4th 517 in State v. Shortly Wethered, (1988), 466, 472, 110 Wn.2d 755 P.2d 797 we unequivocally stated the the Gunwall criteria: necessity employing urges holding Wethered this court to follow our in State v. (1983) Lavaris, 851, 1234 under Const. art. 99 Wn.2d 664 P.2d 1, 170, Simpson, 9 and cites State v. 95 Wn.2d 622 P.2d 1199 § (1980) general authority Washington Constitution as interpreted protective can be and has been as more of indi rights vidual than the United States Constitution. He fails to assist this court.... interpretive principles use the Gunwall By failing to discuss at a minimum the six criteria mentioned in Gunwall, requests he us to without develop argument benefit of authority or citation "adequate independent state

grounds" support Michigan Long, We his assertions. See (1983). 1032, 1201, U.S. 77 L. Ed. 2d 103 S. Ct. 3469 decline policy to do so consistent with our timely not to consider matters neither Rosier, sufficiently argued by parties. nor In re (1986). 606, 616, Wn.2d 717 P.2d 1353 (Italics mine.)

Since Gunwall over 70 Washington appel Wethered, late decisions our rule consider acknowledged barring have ation of state constitutional issues absent briefing 585, factors. Greenwood, Gunwall State v. E.g., 614, (1993); 845 P.2d 971 Tellevik v. 31641 West Rutherford (1992); P.2d 845 P.2d 1325 Wn.2d St., n.1, 65 Wn. 828 P.2d App. State v. Rodriguez, fact, 119 Wn.2d 1019 one notewor denied, review commentator has that: thy explained interpreting

Assistance from counsel in state constitutional directs counsel to provisions vitally important. Wethered they bring sharp the constitutional issues into as a focus as a state possibly by requiring can them to fashion constitutional argument language, that addresses textual constitutional and differences, history, structural and local concerns. common law the criteria are a Our decision in Wethered reaffirmed bar necessary starting a discussion between bench and point for meaning provision. about the a state constitutional (Italics mine.) Utter, Robert F. Justice The Practice Princi- Washing- in State Constitutionalism: pled Decision-Making

765 (1992). This 1153, 1162 L. Rev. 65 Temp. ton's Experience, functions "Gunwall recognized has same commentator state constitutional considering for threshold procedural as (Italics mine.) Utter, 1165. at claims". crafted however, jurisprudence years painfully 8

Today, Share, 106 [v. Bering "[b]ecause in a footnote: is cast aside (1986)] case ais 212, post-Gunwall 721 P.2d 918 Wn.2d not to call construed it be analysis, might Gunwall without we reason, only, in this case For this analysis. for such an of the nonexclusive analysis will not require separate issue." the state constitutional in Gunwall to reach factors reasoning completely ignores 747-48 n.5. This at Majority, after rule, years Bering. 2 adopted the Wethered which was to limit its Moreover, majority's attempt aside the putting this facts, way keep to the there is no principled own case Bering unique. the rule. was not swallowing from exception and Wethered cases between Gunwall There were several without exegesis in a state constitutional engaged Mesiani, See, Seattle v. e.g., factors. benefit Gunwall (1988) Const. art. 454, (interpreting 110 Wn.2d 755 P.2d 775 796, 801-02, 749 P.2d 1, 7); O'Day King Cy., Wn.2d § Const, (1988) Stroud, 1, 5); art. State v. (interpreting § (interpreting (1986) 144, (plurahty opinion) 106 Wn.2d 720 P.2d 436 7). such, analysis majority's st. art. As § Con Const, of law under body serves to cast doubt on a wide only factors. of the Gunwall briefing art. 5 and 7 requiring §§ this court to If, indeed, majority it the intention of a it should be principles, cast aside the GunwalUWethered analysis.9 reasoned forthrightly done with negating result Ironically, majority's analysis. federal law could be reached under sign ordinance L. Ed. 2d Freeman,_U.S._, See, Burson v. e.g., duty, feasible," to consider state "[t]his where 9It is so that court has a (Italics mine.) However, Majority, case cited analysis. at 745. constitutional (citing O'Day, State opinion proposition, 109 Wn.2d at 801-02 this in the lead for (1984)), prior Coe, 364, 373-74, was decided 679 P.2d 353 language recognized from fact, specifically that this rule. In Wethered Wethered. to, briefing by, subject factors. O'Day of the Gunwall limited and Coe was 110 Wn.2d at 471-72. See (1992) (both 112 S. Ct. 1846 plurality dissent would strict require scrutiny content-based, but viewpoint-neu- tral speech); Serv., Antioch v. Candidates' Outdoor Graphic (N.D. 1982) (law 557 F. Supp. Cal. banning posting political signs for 60 to election violated except days prior clause). equal protection It is because of the only applicabil- of federal I ity law that concur in the result.

Andersen, C.J., J., concur with Dur- Brachtenbach, ham, J. July

[No. En 1993.] 59579-8. Banc. Harvey Respondent, Washington, The State of C. Petitioner. Knutson,

Case Details

Case Name: Collier v. City of Tacoma

Court Name: Washington Supreme Court

Date Published: Jul 1, 1993

Citation: 854 P.2d 1046

Docket Number: 59442-2

Court Abbreviation: Wash.