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Posts from June 2015.

Sign on grassReed v. Town of Gilbert, No 13­502, June 18, 2015, involved one of 25 exemptions to Respondent's general requirement that a sign permit be secured to display a sign. Those exemptions are based on the content of the sign. The category at issue was a "temporary directional sign relating to a qualified event," which may be sponsored by a religious, charitable or other nonprofit organization. Signs in this category are limited in size (6 square feet), the number which may be placed on property (4), and time (12 hours before and one hour after the event). Those signs are treated less favorably than ideological signs ( which may be 20 square feet, allowed in any zone and unlimited in time) and political signs (which may be 16 to 32 square feet, depending on the status of the property, and allowed 60 days before and 15 days following an election).

Reed, a church pastor, wished to advertise the times and location of his congregation's service, which were not always in the same place, since there was no fixed church site. The signs did not always contain a date and were in place outside the time limits of the regulations. After accommodation failed, Reed filed a First Amendment claim in federal court. After two rounds in the trial court and Ninth Circuit, relief was denied as the categories were deemed content neutral so that no content based regulation occurred. The Supreme Court granted certiorari.

Justice Thomas, writing for the court, said that content based regulations of expression were presumptively unconstitutional and would only be upheld if shown to serve a compelling public interest and narrowly tailored to achieve the same. He added that "content ­based" dealt with either the topic discussed or idea the message expressed. Even content neutral regulations would be subject to strict scrutiny if they cannot be justified without reference to the content of the speech or shown to be adopted due to disagreement with the message conveyed.

The Court found the regulations content based as they depended on the message i.e. a "qualifying event," an ideological matter, an election) which triggered different regulations for each category, thus triggering the strict scrutiny analysis. The Court found the justifications accepted by the Ninth Circuit "unpersuasive."

One justification was that the regulations were not motivated by disagreement with the message? However the Court responded that motivation is irrelevant if the regulations were not content neutral, even if the regulation were facially neutral. Such a regulation may be content ­based even if it does not discriminate based on subject matter or viewpoints. In this case the regulations single out specific subject matter (information on "qualified events), even if it takes no position on those events, and allows signs relating to that event to be treated differently than ideological or political signs ­­ a paradigmatic example of content ­based discrimination." Another justo action was that the regulations were content ­neutral as to speaker and event. The Court said the signs were based on their content, rather than the identity of the speaker. Had the church or its pastor expressed an ideological message or supported a candidate, the regulations would have been different. Thus they are content based. There was no adequate justification for these regulations under a strict scrutiny analysis.

Respondent offered traffic safety and aesthetics, but the Court found the regulations "hopelessly under-inclusive" as they did not deal with other signs causing similar effects, as they allied an unlimited (in time) posting of ideological signs and a multitude of political signs at election time.

The Court asserted that the public had ample content ­neutral means to deal with aesthetics and traffic safety ­­ by dimensional and physical limitations, for example and suggesting the world would not end if more signs resulted from litigation. The Court also stated that some traffic safety signs may survive strict scrutiny? However that issue was not before it and the differing regulations on ideological, political and qualifying event signs were content ­based and did not survive strict scrutiny. The Ninth Circuit decision was thus reversed and remanded.

Justice Alito, joined by Justices Kennedy and Sotomayor, concurred and further described how signs may be constitutionally regulated, including limits on size, location, lighting, attachment to other structures, regulation of moving messages, placement on public or private property, differences based on zoning districts, onsite or offsite status, number of signs per roadway mile, onetime signs or signs placed by government action following the Court's decision in Pleasant Grove City v. Summum, 555 U.S. 460, 467­69 (2009). This latter category appears to exempt government signs on public property from content neutrality requirements.

Justice Breyer concurred in the judgment, sounding caution in the formulaic use of strict scrutiny in every content based sign code distinction. While that analysts is helpful when a public forum or viewpoint discrimination is involved, government programs almost always involve content discrimination, such as securities regulation, drug or energy ­conservation labeling, reporting of child abuse or comic able diseases and the like, many of which do not involve commercial matters. While he rejects watering down the strict scrutiny test, Justice Breyer suggests it be a "rule of thumb" in most cases outside the public forum or viewpoint discrimination areas to examine whether the regulation is disproportionate to First Amendment interests in light of regulatory objectives. Such an approach would allow regulation of speech by voters where courts "should hesitate to substitute judicial judgment for that of administrators." In any event, Justice Breyer joined Justice Kagan's concurrence in the Court's judgment.

Justice Kagan's, joined by Justices Breyer and Ginsburg, concurred in the judgment, pointing out that numerous local sign codes exempt or permit various sign categories ­­ "pedestrian crossing" or "George Washington Slept Here" being examples, which codes are now seen as content based and subject to strict scrutiny. She asked rhetorically whether a town had a compelling state interest to say "George Washington Slept Here?" Justice Kagan's found the traditional justifications for strict scrutiny may not apply in such low ­level situations, as they do not interfere with the marketplace of ideas or impose viewpoint or subject matter limitations on speech. If those concerns are not present and the risk is inconsequential, strict scrutiny is unwarranted and sweeps too broadly than the actual harm to free speech interests. Justice Kagan suggested the court exercise common sense, leaving intact laws that do not violate these interests. She noted that in Members of the City Council v. Vincent, 466 U.S. 789 (1984) and more recently in City of Ladue v. Gilleo, 512 U.S. 43 (1994), the Court passed over such distinctions and in City of Renton v. Playtime Theatres, 475 U.S. 41, 46 (1986), the Court used intermediate scrutiny to deal with distinctions between adult and other films shown by a movie house. Justice Kagan suggested using Ladue here, under which the Gilbert code would. To pass strict or intermediate scrutiny ("or even the laugh test") as there was no coherent justification for the distinctions made. There was no reason to apply strict scrutiny here and the Court risks becoming the "Supreme Board of Sign Review" without any necessary First Amendment justification.

Justice Kagan's concerns are certainly justified. In the light of this decision, what is the justification for distinguishing between commercial and noncommercial signs or between onsite and offsite signs? One must read the content of the sign to make such regulatory decisions if regulation is to be done at all. The principal opinion suggests that traffic signs "may" survive strict scrutiny, but what if the multitude of other public or private signs that are not traffic related? Perhaps Summum will allow the public to use its proprietary and regulatory powers to deal with some signs, but that response is insufficient to deal with the host of sign issues facing local governments today. Let us hope we will not have wait another twenty years for answers from a Sphinx­like high court.

Reed v. Gilbert, No. 13­502, June 18, 2015.

Fresh Fruit on sale at the Public MarketThe Multnomah County Planning Commission culminated a two year long planning process on Monday June 1, 2015, by approving a new Sauvie Island/Multnomah Channel rural area plan and forwarding it to the Multnomah County Commission for final adoption.  The Commission’s action sets the stage for the island’s future, addressing a wide variety of issues.  Of particular interest was the approach to floating homes, agri-tainment and transportation.

Sauvie Island is one of the closest rural areas to downtown Portland and is special to many people, including the residents of the island, as well as the generations of Portlanders who have picked berries, ridden bikes and gone to the beach on the island.  The difficulty is that, as Portland grows, the island runs the risk of being loved to death.  The new rural area plan is an attempt to address some concerns before they turn into crises.

The first area of concern involves floating homes.  The Multnomah Channel is home to 18 marinas and over 200 floating homes.  An issue that arose in the planning process is how much those marinas would be allowed to expand.  Language in the previous rural area plan would have allowed future development in those marinas at an urban density of one home every 50 feet of waterfront, resulting in a significant increase of residences in this rural area.  The rural area plan approved by the planning commission would limit marinas to only those homes already allowed pursuant to existing County land use approval.

I-stock Flooding photoSt. Bernard Parish Government v. United States, 2015 BL 127431 (Fed. Cl. May 01, 2015) was a takings claim brought by a local government and property owners affected by flooding by various hurricanes between 2005 and 2009.  Plaintiffs alleged that the U.S. Army Corps of Engineers (USACE) was negligent in failing to maintain a 76 mile long navigational channel and that this failure, combined with storm surges resulted in the damage and made these claims cognizable under the Federal Tort Claims Act and Louisiana tort law.  In previous litigation, the courts had made a factual finding that the USACE was negligent, but also found the USACE had discretionary immunity under the Torts Claim Act.  This phase of the case dealt with Plaintiffs’ takings claims.  The record showed that there were clear concerns that the USACE work would compromise the ability of the soils to hold together in the event of storm surges, that the USACE was more focused upon providing for navigability of waterways over safety of shorelands and starved for fiscal resources for the full works.  The court found that the Mississippi River—Gulf Outlet Channel (MRGO) was a “funnel” of destruction and had already destroyed several thousand acres of wetlands in its creation.  The federal government was contemplating its closing the MRGO when a series of hurricanes, including Katrina and Rita, caused great damage to the area.

The court determined it had jurisdiction under the Tucker Act, 28 U.S.C. § 1491 to deal with damage claims against the federal government under other substantive law, such as the Takings Clause, and found that the law of the case had already established standing.  The court also found sufficient lay and expert testimony to support the connection between the construction of the MRGO and the damages claimed on the basis of a temporary taking.  Under Arkansas Game & Fish Comm. v. United States, 133 S. Ct. 511, 522-23 (2012) the plaintiff in a temporary takings case must plead and prove:

(1) a protectable property interest under state law; (2) the character of the property and the owners’ “reasonable-investment backed expectations”; (3) foreseeability; (4) causation; and (5) substantiality.

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