City Of Lakewood, Res/cross-petitioner v. Robert W. Willis, Petr/cross-respondent ( 2015 )

T= ILED
COURT OF APPEALS
OF THE STATE OF WAS
IN THE COURT OF APPEALS O G ON
Z015 APP - 7 AM 9: 22
DIVISION II
STATE OF WASHINOTON
CITY OF LAKEWOOD, No05034 -8 -IL
DEPU
Respondent /Cross -Petitioner,
v.
ROBERT W. WILLIS, UNPUBLISHED OPINION
Petitioner /Cross -Respondent.
MELNICK, J. — On discretionary review, Robert Willis challenges his municipal court jury
trial conviction of begging in restrictive areas. Willis argues that the City of Lakewood' s ( City' s)
anti -begging ordinance is unconstitutional because it infringes on his freedom of speech, it is
unconstitutionally vague, and it discriminates against the poor. We reject Willis' s freedom of
speech and vagueness arguments and hold that the ordinance is a constitutional restriction on
conduct in a non -public forum, and affirm the superior court. We also dismiss Willis' s claim that
the ordinance violates equal protection by discriminating against the poor because review was
improvidently granted on this issue. We do not reach the City' s cross -review claim that the
superior court erred by declining to hold that the ordinance is content -neutral. Accordingly, we
affirm the superior court.
FACTS AND PROCEDURAL HISTORY
A person called 911 to report an individual banging on his or her car while begging for
money on the northbound I -5 exit at Gravelly Lake Drive. A Lakewood police officer responded
to the scene and found Willis standing on the shoulder of the northbound I -5 ramp, facing south
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toward oncoming traffic.1 Willis had a cardboard sign stating he was disabled and needed help.
Willis approached a car by walking out from the shoulder and into the lane of travel.
The City charged Willis with begging in restrictive areas under LMC 09A.4. 020A. LMC
09A.4. 020A provides: " Begging shall be deemed a violation of this section of the municipal code
under the following conditions: ( 1) at on and off ramps leading to and from state intersections from
any City roadway or overpass." Begging is defined as " asking for money or goods as a charity,
whether by words, bodily gestures, signs or other means." LMC 09A. 4. 020( E). A municipal court
jury found Willis guilty of begging in restrictive areas.
Willis appealed to the Pierce County Superior Court and, for the first time, raised
constitutional challenges to the ordinance.2 The superior court affirmed his conviction and held
that LMC 09A.4. 020A is a reasonable time, place, and manner regulation that does not violate the
First Amendment, the Due Process Clause, or the Equal Protection Clause. The superior court
reasoned that the ordinance was " narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication." Clerk' s Papers ( CP) at 108. The City
argued that the restrictions were content -neutral; however, the superior court did not rule on the
issue.
Willis this for discretionary review, which we granted. We
and the City petitioned court
affirm the superior court.
1The record is somewhat confusing, as it appears to indicate that the citing officer was coming
southbound from the north, meaning that if Willis had been on the northbound ramp, the officer
would have had to cross the median to reach Willis. Regardless, the uncontroverted testimony
established that Willis was at an " on [ or] off ramp[] leading to [ or] from state intersections from
any City roadway or overpass." LMC 09A.4. 020A. This fact suffices for the foregoing analysis.
2 Because Willis did not raise his constitutional issues in the municipal court, the factual record is
not well developed.
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ANALYSIS
I. STANDARD OF REVIEW
The constitutionality of a statute or ordinance is a matter of law we review de novo. Kitsap
County v. Mattress Outlet, 153 Wn.2d 506, 509, 104 P. 2d 1280 ( 2005). In general, a duly enacted
ordinance is presumed constitutional, and the challenger must demonstrate its unconstitutionality
beyond a reasonable doubt. Mattress Outlet, 153 Wn.2d at 509. But in the First Amendment
context, the burden shifts to the State to justify a restriction on speech. Greater New Orleans
BroadcastingAss' n, Inc. v. United States, 527 U.S. 173, 183, 119 S. Ct. 1923, 144 L. Ed. 2d 1611999). This shift also occurs where the challenged law restricts the time, place, or manner of
speech. Collier v. City of Tacoma, 121 Wn.2d 737, 759, 854 P. 2d 1046 ( 1993). As we explain
below, LMC 09A.4. 020A restricts the place of speech. Therefore, Lakewood bears the burden to
meet each element of the time, place, and manner test.
II. FIRST AMENDMENT
Willis argues that LMC 09A.4. 020A violates his right to freedom of speech because it is a
content - based prohibition on speech and less restrictive alternatives were available. Even if the
ordinance were content -neutral, Willis argues that the City failed to demonstrate that the ordinance
supported a compelling state interest or was reasonably related to supporting that interest. The.
City argues that LMC 09A.4. 020A is a permissible regulation of speech in a non -public forum.
Alternatively, the City argues that LMC 09A.4. 020A is permissible as a content -neutral restriction
on the time, place, or manner of speech. We agree with the City and hold that a freeway onramp
is a non -public forum. We hold that LMC 09A.4. 020A is a reasonable and viewpoint neutral
regulation, and we affirm the superior court without reaching the City' s alternative argument.
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A. Forum Analysis
Forum analysis requires a two -step inquiry. First, we must determine the type of forum
affected by the restriction here: Is it a public forum, a limited public forum, or a nonpublic forum?
If the forum is determined to be nonpublic, the restriction is constitutional if it is reasonable in
light of the purposes of the forum and is neutral."
viewpoint - Herbert v. Wash. State Pub.
Disclosure Comm' n, 136 Wn. App. 249, 263, 148 P. 3d 1102 ( 2006).
The First Amendment to the federal constitution protects the right to freedom of speech.3
But the government is not obligated to permit all forms of speech on property that it owns and
Therefore, "[ i] n
controls. Sanders v. City of Seattle, 160 Wn.2d 198, 208, 156 P. 3d 874 ( 2007).
reviewing a free speech challenge to a government regulation, the level of judicial scrutiny is
determined into type property falls." Sanders, 160 Wn.2d at
by the category which a specific of
208.
The courts distinguish between three categories of forums. First, there are traditional
forums have been held in trust for the use of the public and ... for
public which "' immemorially
purposes of assembly, communicating thoughts between citizens, and discussing public
questions. ' Perry Educ. Ass 'n v. Perry Local Educators' Ass 'n, 460 U. S. 37, 45, 103 S. Ct. 948,
74 L. Ed. 2d 794 ( 1983) ( quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S. Ct.
954, 83 L. Ed. 1423 ( 1939)). To be a traditional public forum, a property must have "` as a principal
purpose ... the free exchange of ideas. ' Sanders, 160 Wn.2d at 209 ( quoting Intl Soc' y for
3"
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
to the government for a redress of grievances." U. S. CONST.
peaceably to assemble, and petition
amend. I.
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Krisha Consciousness, Inc. v. Lee, 505 U. S. 672, 679, 112 S. Ct. 2701, 120 L. Ed. 2d 541 ( 1992)
alteration in original) ( internal quotation marks omitted)).
Second, the government may create a public forum " by intentionally opening a
nontraditional forum for public discourse." Cornelius v. NAACP Legal Defense & Educ. Fund,
Inc., 473 U. S. 788, 802, 105 S. Ct. 3439, 87 L. Ed. 2d 567 ( 1985). The courts will not " infer that
the government intended to create a public forum when the nature of the property is inconsistent
with expressive activity." Cornelius, 473 U. S. at 803.
Third, " government property may be considered a nonpublic forum when it is not a
traditional public forum and has not been designated by government as a forum for public
communication." Sanders, 160 Wn.2d at 210.
Here, Willis was convicted of begging on a freeway onramp. To determine whether the
onramp is a public forum, we consider " whether a ` principal purpose' of the property is the free
exchange of ideas, whether the property shares the characteristics of a traditional public forum,
and the historical use of the property." Sanders, 160 Wn.2d at 211. Applying this analysis we
hold that a freeway onramp is a non -public forum.
Freeway onramps are not, and have never been, principally intended as a forum for the
ideas. are components of the Interstate System and are meant to "' facilitate safe
exchange of They
and efficient travel by motorists along the System' s highways. ' Jacobsen v. Bonine, 123 F. 3d
1272, 1274 ( 9th Cir. 1997) ( quoting Sentinel Commc' ns Co. v. Watts, 936 F.2d 1189, 1203 ( 1 lth
Cir. 1991)). Nothing in the record indicates that the government intended to open the freeways to
public discourse. Allowing expressive activity in the freeway and its onramps would disrupt the
principal purpose of the freeway which is to facilitate travel. In fact, Willis' s activities disrupted
travelers because he entered the lane of travel and approached cars. Freeways and their onramps
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are not traditional public forums, nor have they been designated as forums for public
communication. Therefore, we hold that freeway onramps are nonpublic forums.
B. Reasonable Restriction & Viewpoint Neutral
Speech in nonpublic forums may be restricted if ` ...the distinctions drawn are reasonable
in light of the purpose served by the forum and are viewpoint neutral.' City of Seattle v. Huff,
111 Wn.2d 923, 926, 767 P. 2d 572 ( 1989) ( quoting City ofSeattle v. Eze, 111 Wn.2d 22, 32, 759
4"
P. 2d 366 ( 1988)) ( alteration in original) ( internal quotation marks omitted). Viewpoint- neutral
regulations are those not in place ` merely because public officials oppose the speaker' s view. '
Herbert, 136 Wn. App. at 264 ( quoting Perry, 460 U.S. at 46).
It is reasonable to prohibit begging activity in a forum that is primarily meant for the
passage of automobiles. When persons confront motorists to ask for money, they interrupt the
flow of traffic and disrupt the efficient functioning of the freeway system. Begging on the freeway
also creates significant safety risks, particularly where, like Willis, a person enters into cars' lanes
of travel.
LMC 09A. 4. 020A is also viewpoint neutral. See Herbert, 136 Wn. App. at 264. Under
the ordinance, no one may beg on a freeway onramp, regardless of why they are begging. In other
words, even though the ordinance restricts the speaking of certain content, the ordinance does not
concern itself with the speaker' s viewpoint. The ordinance evenhandedly regulates conduct, not
to suppress any particular viewpoint, but to reduce a potentially severe threat to public safety. We
4 Because Willis raised his constitutional challenges for the first time on appeal, we are mindful
from making factual to defend its positions. For
that the City was precluded a complete record
example, it never litigated the compelling interest the City had in enacting the ordinance.
Nonetheless, we feel there are sufficient facts on the forum issue for us to decide the case.
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hold that LMC 09A.4. 020A is a permissible regulation of a nonpublic forum, and we affirm the
superior court without reaching the City' s arguments on cross -review.
III. VAGUENESS.
Willis argues that LMC 09A.4. 020A is unconstitutionally vague and violates the Due
Process Clause of the Fourteenth Amendment. The City argues that Willis has failed to provide
facts to support his vagueness claim, and that even if the record were adequate to permit review of
Willis' s claim, LMC 09A. 4. 020A is not void for vagueness. We agree with the City and affirm
the superior court.
Willis appears to challenge LMC 09A.4. 020A as unconstitutionally vague on its face.
When it is alleged that a statute is wholly unconstitutional, the court looks not to the conduct of
the defendant, but to the face of the statute to determine whether any conviction under the statute
could be constitutionally upheld. "' State v. Maciolek, 101 Wn.2d 259, 262 -63, 676 P. 2d 996 ( 1984)
quoting State v. Hood, 24 Wn. App. 155, 158, 600 P. 2d 636 ( 1979)).
An ordinance is sufficiently specific if two requirements are met: " First, criminality must
be defined with sufficient specificity to put citizens on notice concerning conduct they must avoid.
And second, legislated crimes must not be susceptible of arbitrary and discriminatory law
enforcement." City of Seattle v. Webster, 115 Wn.2d 635, 642 -43, 802 P. 2d 1333 ( 1990); accord
Kolender v. Lawson, 461 U. S. 352, 357 -58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 ( 1983). Here, both
requirements are satisfied.
LMC 09A.4. 020A very clearly describes what behavior is proscribed, i. e. " asking for
or goods as a charity" while on a freeway onramp or other enumerated area. LMC
money
09A. 4. 020( E). The ordinance gives citizens and law enforcement alike precise direction about
what conduct is forbidden, and where it is forbidden. Willis complains that the ordinance would
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sweep in " all charities asking for contributions ... people requesting donations in support of
political campaigns or interest groups ... [ and] people stranded on the side of a road. Br. of
Appellant at 19. Even if we accept Willis' s position, it does not make the ordinance vague. Willis
does not argue that LMC 09A.4. 020A " invest[ s] a police officer with discretion to define the
prohibited conduct." Roulette v. City of Seattle, 850 F. Supp. 1442, 1446 ( W.D. Wash. 1994),
aff'd, 97 F. 3d 300 ( 9th Cir. 1996) ( emphasis added). Rather, " the ordinance itself defines what
constitutes an infraction." Roulette, 850 F. Supp. at 1446. LMC 09A.4. 020A is not
unconstitutionally vague, and we reject Willis' s vagueness challenge.
IV. EQUAL PROTECTION
Willis argues that LMC 09A.4. 020A discriminates against " individuals that need help or
of the Equal Protection Clause the Fourteenth Amendment. Br. of
money" in violation of
Appellant at 21. The City argues that Willis has failed to provide facts to support his equal
protection claim, and that even if the record were adequate to permit review of Willis' s claim,
LMC 09A.4. 020A does not impermissibly discriminate against the poor. We agree that the record
is not adequate to properly analyze Willis' s equal protection claim, and we hold that we
improvidently granted discretionary review of Willis' s equal protection challenge.
As a threshold to any equal protection challenge, a party must establish that he or she is
similarly situated with other persons in a class who have received different treatment under the
same law. State v. Osman, 157 Wn.2d 474, 484, 139 P. 3d 334 ( 2006). Willis argues that LMC
09A.4. 020A discriminates on the basis of poverty. But the record does not indicate whether Willis
is impoverished. It is true that the municipal court found Willis indigent. But this finding does
not mean that Willis is below the poverty line —only that he " lacks sufficient funds to prosecute
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an appeal." CP at 115. On this record, Willis cannot meet his burden to show that he is similarly
situated with members of the allegedly targeted class.
Even if Willis could show that he was similarly situated with the impoverished, this record
is not adequate to determine the merits of Willis' s equal protection claim. " A defendant must
establish that he received disparate treatment because of membership in a class of similarly situated
individuals and that the disparate treatment was the result of intentional or purposeful
discrimination." Osman, 157 Wn.2d at 484. Because Willis failed to raise the equal protection
issue in the municipal court, the record is insufficient for us to adequately determine the City' s
intent or purpose for passing LMC 09A. 4. 020A. Willis argues that the City failed to meet its
burden; however, because he never raised it in the municipal court, neither the City nor Willis had
the opportunity to present all of the facts necessary to decide this issue.
Evidence of the challenged statute' s disparate impact may establish the requisite
discriminatory intent or purpose. Vill. ofArlington Heights v. Metro. Hous. Dev. Corp., 429 U. S.
252, 266, 97 S. Ct. 555, 50 L. Ed. 2d 450 ( 1977). Absent a " clear pattern, unexplainable on grounds
other than [ the alleged class] ... impact alone is not determinative." Arlington Heights, 429 U. S.
at 266. Here, nothing in the record speaks to the impact of LMC 09. 4. 020A, or how it is being
applied in the field. Willis' s allegation that "[ o] fficers are not arresting charitable organizations
or firefighters in violation of this law, only poor people," is without substantiation. Br. of
Appellant at 22. On this record, we are unable to perform a disparate impact inquiry.
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We dismiss Willis' s equal protection claim as improvidently granted, and we affirm the
superior court.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
I concur:
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BJORGEN, A. C. J. ( concurring) — The majority opinion holds, correctly, that the record is
not adequate to properly analyze Willis' s equal protection claims. The majority opinion also
concludes, however, that as a matter of law a finding of indigency does not necessarily mean that
Willis is below the poverty line for equal protection purposes. Whether correct or not, a
conclusion this elemental to the law' s treatment of the disadvantaged should not be made on an
inadequate record and without thorough briefing.
In Douglas v. California, the Court held, using an equal protection analysis, that those
who are indigent have the right to public counsel for their first appeal as a matter of right. The
evil, Justice Douglas wrote, is
discrimination against the indigent. For there can be no equal justice where the
kind of an appeal a man enjoys " depends on the amount of money he has."
372 U. S. 353, 355, 83 S. Ct. 814, 9 L. Ed. 2d 811 ( 1963) ( quoting Griffin v. Illinois, 351 U.S. 12,
19, 76 S. Ct. 585, 100 L. Ed. 891 ( 1956)). 5 With this opinion, the Supreme Court recognized that
indigency, when coupled with the restriction of a right of sufficient stature, is a classification that
triggers enhanced scrutiny under the equal protection clause. The result and reasoning of
Douglas remain vital. In 2005 the United States Supreme Court, relying principally on Douglas,
held that the due process and equal protection clauses also require the appointment of counsel for
5 The Supreme Court has recognized that due process and equal protection principles converge in
the Court' s analysis of this family of issues. Bearden v. Georgia, 461 U.S. 660, 665, 103 S. Ct.
2064, 76 L. Ed. 2d 221 ( 1983). The Court stated that " we generally analyze the fairness of
relations between the criminal defendant and the State under the Due Process Clause, while we
approach the question whether the State has invidiously denied one class of defendants a
substantial benefit available to another class of defendants under the Equal Protection Clause."
Bearden, 461 U. S. at 665.
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defendants, convicted on their pleas, who seek access to first -tier review in the Court of Appeals.
Halbert v. Michigan, 545 U.S. 605, 610, 125 S. Ct. 2582, 162 L. Ed. 2d 552 ( 2005).
The Supreme Court has also made clear that poverty, standing alone, is not a suspect
classification. Harris v. McRae, 448 U. S. 297, 323, 100 S. Ct. 2671, 65 L. Ed. 2d 784 ( 1980).
However,
a classification based on poverty or wealth can become a suspect classification,
subject to more rigid scrutiny than other classifications, when such classification
interferes with a fundamental constitutional right.
16B AM. JUR. 2d Constitutional Law, § 904. This recognition was at work in Douglas and is
seen, although obliquely, in the Carolene Products footnote that laid one of the principal
doctrinal footings for enhanced scrutiny under the constitution:
There may be narrower scope for operation of the presumption of constitutionality
when legislation appears on its face to be within a specific prohibition of the
Constitution, such as those of the first ten Amendments, which are deemed equally
specific when held to be embraced within the Fourteenth. •
United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4, 58 S. Ct. 778, 82 L. Ed. 12341938).
The analysis was further refined in Bearden v. Georgia, 461 U. S. 660, 661, 665, 103 S.
Ct. 2064, 76 L. Ed. 2d 221 ( 1983), which held that an indigent defendant' s probation may not be
revoked for failure to pay a fine and restitution, absent findings that the defendant was somehow
responsible for the failure or that alternative forms of punishment were inadequate. The Court
prefaced its Fourteenth Amendment analysis by stating that it has long been sensitive to the
treatment of indigents in our criminal justice system and citing a list of its cases dealing with the
deprivation of the rights of an indigent person to counsel, appeals, and liberty. Bearden, 461
U. S. at 664 -65.
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Our state Supreme Court has walked consistently with these precedents. In State v.
Phelan, 100 Wn.2d 508, 514, 671 P. 2d 1212 ( 1983), the court applied an intermediate level of
scrutiny in determining that jail time must be credited against the discretionary minimum term
imposed under state law in effect before adoption of the Sentencing Reform Act of 1981, chapter
9. 94A RCW. Although our sentencing laws have changed, the court' s rationale for imposing
heightened scrutiny remains strong:
Physical liberty, while not recognized as " fundamental ", is a basic human right and
the poor, while not a suspect class, cannot be said to be fully accountable for their
status. Since a denial of credit for presentence jail time involves both a deprivation
of liberty in addition to that which would otherwise exist, and a classification based
solely on wealth, we will apply an intermediate level of scrutiny in the present case.
Phelan, 100 Wn.2d at 514. Thus, neither the " fundamental" status of the right nor the
suspect" nature of the class are necessary for heightened scrutiny.
When one lacks the money to eat properly, the ability to effectively ask others for help
becomes critical. When one is homeless or of fluctuating mental health, it may become
effectively impossible to navigate the mazes of a social service system that at times would baffle
a Theseus. Depending on one' s circumstances, the law' s restrictions on .the ability to ask
individuals for help may ultimately jeopardize life, a constitutional interest among the most
fundamental. This is not to argue that government may not ban aggressive panhandling on
freeway ramps. It is to argue that the courts should not make rulings touching on the scope of
the class of the poor for equal protection or due process purposes without a penetrating eye for
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the facts of poverty in our nation and an acute review of what the case law requires in the world
as it is.
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