Watters v. Otter

986 F.Supp.2d 1162

Edward WATTERS, Dean Gunderson, Steven Farnworth, Matthew Alexander Newirth, individuals, and Occupy Boise, an Idaho unincorporated nonprofit association, Plaintiffs,

v.C.L. (Butch) OTTER, in his official capacity as the Governor of the State of Idaho, Teresa Luna, in her official capacity of the Director of the Idaho Department of Administration, and Col. G. Jerry Russell, in his official capacity as the Director of the Idaho State Police, Defendants.

Case No. 1:12–cv–00076–BLW.

United States District Court, D. Idaho.

Dec. 9, 2013.

Held Unconstitutional

IDAPA 38.04.06.200.03, 38.04.06.201, 38.04.06.400.01, 38.04.06.400.03, 38.04.08.400.07, 38.04.08.200.04, 38.04.08.201, 38.04.08.500.01.

Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation, Bryan Keith Walker, Obsidian Law, PLLC, Boise, ID, for Plaintiffs.

Carl J. Withroe, Clay R. Smith, Michael S. Gilmore, Idaho Attorney General, Thomas C. Perry, Office of The Governor, Boise, ID, for Defendants.

AMENDED MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, Chief Judge.

INTRODUCTION

The Court has before it Occupy Boise's renewed motion for partial summary judgment (Dkt. 106), challenging administrative rules that Occupy Boise claims restrict First Amendment activity. The Court heard oral argument on Occupy Boise's renewed or supplemental motion for partial summary judgment on July 23, 2013. It had heard oral argument on Occupy Boise's first motion for partial summary judgment on February 26, 2013.¹ The Court took the motions under advisement. For the reasons set forth below the Court will grant in part and deny in part Occupy Boise's renewed motion for partial summary judgment.

SUMMARY

After Occupy Boise filed its complaint challenging a newly-enacted statute banning camping on state grounds, the State imposed administrative regulations governing use of the Capitol Mall exterior. Occupy Boise claims that the administrative rules impermissibly restrict First Amendment activity, and it now seeks partial summary judgment declaring the rules invalid and permanently enjoining their enforcement.

The administrative rules challenged by Occupy Boise regulate, in part, expressive conduct operating at the core of the First Amendment: political speech taking place in a traditional public forum—the Statehouse and Capitol Mall area. Regulations affecting political speech in traditional public fora are presumptively invalid. But the First Amendment does not guarantee the right to communicate one's views at all times and all places, or in any manner desired. The State has the authority to impose reasonable time, place, and manner restrictions, provided they (1) are content neutral, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels of communication. In addition, a permitting scheme may not give unbridled discretion to a government official.

Some of the challenged rules meet this criteria while others do not. The chalking, staking, and grounds maintenance rules are all sufficiently tailored to further a significant state interest and are therefore reasonable time, place, and manner restrictions. In addition, the permitting scheme, for the most part, as well as the rules pertaining to utility services, also pass constitutional muster. On the other hand, the rules allowing rule waivers for “State Events” impermissibly elevates state-sponsored speech over other types of speech and grants the Idaho Department of Administration too much discretion in deciding which events are “State Events.” The fees and costs rule also grants the Department too much discretion in imposing costs on permit holders. Finally, the revised durational limits and the indemnity and liability rules are not sufficiently tailored to serve a legitimate state interest and are therefore invalid.

BACKGROUND

In November 2011, Occupy Boise, in solidarity with the Occupy Wall Street movement, erected a tent city on the Capitol Annex grounds to protest income inequality. Occupy Boise placed the tent city on a public plaza in direct view of the Idaho Statehouse, the Idaho Supreme Court building, and other nearby government buildings. As part of their protest, Occupy Boise participants camped on the Annex grounds round-the-clock.

After Governor Otter signed into law a ban on “camping” on state grounds, he signed into law a statute, Idaho Code § 67–5709, directing the Idaho Department of Administration to promulgate new rules governing the use of the Capitol Mall grounds and other state facilities. I.C. § 67–5709. In the spring of 2012, Defendant Teresa Luna and the Department of Administration issued temporary rules pursuant to the statute. The temporary rules went into effect on April 17, 2012. The rules were amended effective May 14, 2012, and were later rescinded on October 3, 2012, with new temporary and proposed rules simultaneously issued.

The rules, found in the Idaho Administrative Code at IDAPA 38.04.06 and 38.04.08, cover two sets of grounds near the Statehouse: IDAPA 38.04.06 covers the grounds in the Capitol Mall except for the two blocks where the Statehouse itself sits, as well as “Other State Properties,” which includes state facilities located throughout Boise and other parts of Idaho; and IDAPA 38.04.08 covers the grounds around the Statehouse itself, including the prominent south Capitol steps on Jefferson Street.

Both sets of grounds contain several public open spaces that can accommodate large groups of people or many individuals not in a group. Howard Decl., Ex. C, Dkts. 84–14 and 84–15; Watters Decl., Ex. A, Dkt. 84–8. By the rules themselves, the State has acknowledged these grounds as forums for First Amendment expression, association, and assembly. These grounds have also traditionally been used for those activities. Watters Decl. ¶ 4, Dkt. 84–7; Neiwirth Decl. ¶ 5, Dkt. 5; Gunderson Decl. ¶¶ 6–7, Dkt. 4; Perry Decl. ¶ 2, Dkt. 9.

Having already filed a complaint challenging the constitutionality of the no-camping ban,² in September 2012, Occupy Boise moved to amend its complaint to include a challenge to some of the newly-enacted administrative rules. Occupy Boise then filed a motion for partial summary judgment in December 2012, asking the Court to declare the temporary rules, as published in the October 2012 edition of the Idaho Administrative Bulletin, unconstitutional and enjoining their enforcement.

On February 26, 2013, the Court held oral argument on Occupy Boise's motion for partial summary judgment and took the matter under advisement. The following day, February 27, 2013, the Idaho Legislature printed two concurrent resolutions, each proposing to reject parts of the new rules as “not consistent with legislative intent....” The Legislature adopted both concurrent resolutions, rejecting parts of both sets of new rules, on about March 29, 2013. In response to the Legislature's resolutions, Defendant Teresa Luna and the Idaho Department amended the rules. The amendments took effect immediately, on April 5, 2013.

Occupy Boise has now filed a supplemental motion for partial summary judgment. In its supplemental motion, Occupy Boise renews some prior arguments still applicable to some unmodified provisions and mounts a First Amendment attack on three modifications in the revised rules—Public Use Duration; Approvals and Denials of a Permit Application; and Liability and Indemnification—and two other provisions that were not substantively altered by the revisions pertaining to Utility Service. In addition, Occupy Boise argues that its earlier challenge to certain deleted rules remains justiciable under the unilateral action and collateral consequences exceptions to the mootness doctrine.³

ANALYSIS

1. First Amendment Framework

Certain general principles of First Amendment law guide the Court's analysis. The First Amendment prohibits Congress from enacting laws “abridging the freedom of speech, ... or the right of the people peaceably to assemble.” U.S. Const. amend. I. The Supreme Court has extended the protection of the First Amendment to the states. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963).

The First Amendment affords greater protection to certain types of speech. See, e.g., Nat'l Adver. Co. v. City of Orange, 861 F.2d 246, 248 (9th Cir.1988) (“The first amendment affords greater protection to noncommercial than to commercial expression.”). Political speech is core First Amendment speech, critical to the functioning of our democratic system. Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). And “the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (quoting Citizens Against Rent Control/Coal. for Fair Hous. v. City of Berkeley, 454 U.S. 290, 294, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981)). For this reason, the First Amendment applies with particular force to marches and other protest activities. U.S. v. Baugh, 187 F.3d 1037, 1042 (9th Cir.1999)

The Supreme Court also affords different protections to First Amendment activities depending on the location of the activities. To account for these differences, the Court has developed an analysis that examines the location of the speech to determine the level of scrutiny the courts must give to any state-imposed restrictions on that speech. According to this analysis, the restrictions on speech in a traditional public forum are examined under the strictest scrutiny. United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). In a public forum, the state may not impose a blanket prohibition on speech, and may enforce a content-based exclusion only if it is narrowly drawn to achieve a compelling state interest. A.C.L.U. of Nevada v. City of Las Vegas, 333 F.3d 1092 (9th Cir.2003). On the...