Khademi v. South Orange County Community College

194 F.Supp.2d 1011

Pourya KHADEMI, et al., Plaintiffs, v. SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT, Defendant.

No. CV01-1932ABC (MCX).

United States District Court, C.D. California.

March 18, 2002.

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Carol Sobel, Wendy Phillips, Santa Monica, CA, for Plaintiffs.

Allan Wilion, Wilion Kirkwood & Kessler, Los Angeles, CA, for Defendant.

ORDER RE: PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION

COLLINS, District Judge.

In 1999, this Court enjoined the enforcement of certain sections of a policy regulating the time, place, and manner of speech and advocacy on campuses of Defendant South Orange County Community College District ("SOCCCD" or the "District"). Two and a half years later, the parties are again before the Court, in a challenge to the current speech and advocacy rules adopted by the District, Board Policy 8000 ("BP 8000"). Currently pending before the Court is Plaintiffs' Motion for Summary Adjudication. The Motion came on regularly for hearing on March 18, 2002. Upon consideration of the submissions of the parties, the case file, and the argument of counsel, the Motion is hereby GRANTED IN PART and DENIED IN PART.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the previous case, Burbridge v. Sampson, No. CV 99-9482 ABC (Mcx), plaintiffs Diep Burbridge, Scott Stephansky, and Dorothy Caruso brought a challenge to Defendant's Board Policy 5406. On September 29, 1999, the Court enjoined the enforcement of certain sections of that policy. See Burbridge v. Sampson, 74 F.Supp.2d 940 (C.D.Cal.1999).¹ In the summer of 2000, Defendant adopted a new time, place, and manner regulation, Board Policy 8000. Complaint ¶ 11, 11. 12-13; see also Motion Ex. 1 (BP 8000). On February 28, 2001, Plaintiffs brought the current action to enjoin enforcement of BP 8000. Plaintiffs are Burbridge, a plaintiff in the earlier action, and James Irvine and Pourya Khademi. All three plaintiffs are students at one or both of the two campuses, Irvine Valley College and Saddleback College, that make up the SOCCCD. See Motion Decl. of Diep Burbridge ("Burbridge Decl."); Motion Decl. of James Irvine ("Irvine Decl."); Motion Decl. of Pourya Khademi ("Khademi Decl."). Plaintiffs allege that BP 8000 violates the First and Fourteenth Amendments of the United States Constitution; Article 1, sections 2 and 3 of the California Constitution; and California Education Code § 66301. Complaint ¶¶ 15-27. They seek declaratory and injunctive relief. Complaint Prayer for Relief ¶¶ 1-7.

On February 11, 2002, Plaintiffs filed a Motion for Summary Adjudication with regard to certain sections of BP 8000, noticed for hearing on March 11, 2002. Defendant filed an Opposition on February 26, 2002. Plaintiffs filed a Reply on March 4, 2002. On March 6, 2002, the Court continued the hearing to its present setting, March 18, 2002.

II. LEGAL STANDARD

The party moving for summary judgment or summary adjudication has the initial burden of establishing that there is "no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed.R.Civ.Pro. 56(c); see British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978); Fremont Indemnity Co. v. California Nat'l Physician's Insurance Co., 954 F.Supp. 1399, 1402 (C.D.Cal.1997).

If the moving party has the burden of proof at trial (e.g., a plaintiff on a claim for relief, or a defendant on an affirmative defense), the moving party must make a "showing sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986) (quoting from Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). Thus, if the moving party has the burden of proof at trial, that party "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in [its] favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original); see Calderone, 799 F.2d at 259.

If the opponent has the burden of proof at trial, the moving party has no burden to negate the opponent's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party does not have the burden to produce any evidence showing the absence of a genuine issue of material fact. Id. at 325, 106 S.Ct. 2548. "Instead, ... the burden on the moving party may be discharged by `showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. (citations omitted).

Once the moving party satisfies this initial burden, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings ... [T]he adverse party's response ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). A "genuine issue" of material fact exists only when the nonmoving party makes a sufficient showing to establish the essential elements to that party's case, and on which that party would bear the burden of proof at trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which a reasonable jury could reasonably find for plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in favor of the nonmovant. Id. at 248, 106 S.Ct. 2505. However, the court must view the evidence presented "through the prism of the substantive evidentiary burden." Id. at 252, 106 S.Ct. 2505.

III. DISCUSSION

A. Whether Plaintiffs Have Standing

As a threshold matter, the Court must examine whether Plaintiffs having standing to raise their challenges to BP 8000. Article III standing contains three elements: (1) "an injury in fact"; (2) "a causal connection between the injury and the conduct complained of"; and (3) likelihood that the injury will be "`redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The first element of the standing inquiry—the injury in fact—is "an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) `actual or imminent, not conjectural' or `hypothetical.'" Id. at 560, 112 S.Ct. 2130 (citations omitted). A plaintiff must show that "`he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct.'" 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1111-12 (9th Cir.1999) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). "Thus, a `plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.'" Id. at 1112 (quoting Secretary of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 955, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) ("Munson")).

When a case concerns a challenge that a statute or ordinance is, on its face, unconstitutional, particularly in the First Amendment context, the type of facial challenge at issue affects the standing analysis. While the plaintiff must still demonstrate an injury in fact, plaintiff may assert not just his own constitutional rights, he may also assert the constitutional rights of others. Id.

A statute may be facially unconstitutional if (1) "`it is unconstitutional in every conceivable application'" or (2) "`it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally overbroad.'" Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.1998) (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)).² The first type of facial challenge involves a plaintiff who argues that the statute "could never be applied in a valid manner because it is unconstitutionally vague or it impermissibly restricts a protected activity." Id. In such a case, courts apply the general rule that a plaintiff has standing only to vindicate his own constitutional rights, rights that have been, or are in imminent danger of, being invaded by the government's implementation or enforcement of that statute. See id.; cf. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 220-21, 237, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) ("There can be little question that the motel owners have `a live controversy' against enforcement of [a] statute" that regulates adult motels and other "sexually oriented businesses").

However, an exception to the traditional standing rule applies in the First Amendment context when a plaintiff raises the second type of facial challenge. Foti, 146 F.3d at 635. In this type of challenge, "the plaintiff argues that the statute is written so broadly that it may inhibit the constitutionally protected speech of third parties." Id.; accord Munson, 467 U.S. at 956-57, 104 S.Ct. 2839. In such a case, the general limitation on standing is relaxed because there exists "a danger of chilling free speech" in society as a whole. Munson, 467 U.S. at 956-57, 104 S.Ct. 2839. Thus, so long as the plaintiff himself satisfies the injury in fact requirement, he has standing to argue that a law is facially overbroad as it relates to the expressive activities of others, whether or not he also challenges the law's overbreadth as it relates to his own expressive activities. See id. (a for-profit professional fundraiser who contracts with charitable organizations has standing to challenge a statute that prohibits charitable organizations from paying or agreeing to pay as expenses more than 25 percent of the...