Mr. Linick: Your Honor, I'm not sure whether the government intends to appeal. If it does, I would only be inclined to cross appeal because [sic] on the issue on that administrative appeal system.
Is Your Honor inclined to give a ruling on that aspect of this case, as well?
The Court: The court has entered its ruling, and having dismissed the action finds that it is unnecessary for it to go further into the matter.
A. Nature of the Case.
B. Statutory and Regulatory Framework.
[w]hile the Department of Agriculture claims to have cured this defect in its 1995 amendments to the federal regulations respecting special use authorizations, it attempts to go through the back door to accomplish what it could not through the front door, by giving the "authorized officer" the unfettered and unbridled discretion to add "terms and conditions" which he or she "deems necessary to otherwise protect the public interest." Defendant's Motion to Dismiss, p. 9.
"It actually is an extraordinarily complicated administrative process because parts of it depend upon whether a particular decision was written or oral." ER 64-65.
scheme, the regulatory scheme can only be considered constitutional from the date of this Court's ruling.
A. NATURE OF RAINBOW FAMILY OF LIVING LIGHT GATHERINGS
Moreover, the Rainbow Family has an excellent history of cleaning and rehabilitating the sites upon which it gathers. See for example letter from Susan V. Skalski, Forest Service District Ranger [Big Summit Ranger District], dated July 28, 1997, respecting the cleanup of the 1997 National Gathering held near Prineville, Oregon, Defendant's Motion to Dismiss Exhibit #4; and The Oregonian newspaper article, July 9, 1998, Defendant's Motion to Dismiss Exhibit #5. See also United States v. Rainbow Family, 695 F. Supp. 314 (E.D.Tex. 1988) whereat Chief Judge Justice, noting that there was a dispute between the Rainbow Family and the Forest Service as to why the 1987 North Carolina site was not properly cleaned and restored, found there was evidence in the record to the effect that the Rainbow Family had adequately cleaned and restored other gathering sites in the past, such as in northern California in 1984 and Oregon in 1978. at 328, note 3.
B. CONSTITUTIONAL ASPECTS OF RAINBOW FAMILY GATHERINGS AND ACTIVITIES
* * * it cannot reasonably be disputed that the activities in which the [Rainbow Family] defendants seek to engage are "expressive" in nature and accordingly within the ambit of the First Amendment. The record fully reflects that the defendants' anticipated councils, gatherings or meetings in the National Forests will involve significant expressive activity. For example, individual defendants have testified that Rainbow Family gatherings and councils involve exchange of views on many subjects, including political topics, as well as educational seminars and various forms of worship. Moreover, many of those associated with the Rainbow Family view their very participation or association in such events as political statements (for example, some argue for peace and the ecology, while others are in opposition to hierarchical, coercive systems of government). Even the act of camping in the National Forests may have political connotations and qualify as protected symbolic activity. Thus, it is unquestionable that rights of speech, worship, and association, closely guarded under the First Amendment, are operative here. [Citations omitted].
695 F. Supp. at 308 [Emphasis added].
695 F. Supp. at 308-09 [Emphasis added].
See also United States v. Rainbow Family, 695 F. Supp. 314, 322-23 (E.D.Tex. 1988).
The Rainbow Family * * * regularly gathers in undeveloped sites in National Forests to pray for peace, discuss environmental and other contemporary political and social issues, and [to] exchange, develop, express, and demonstrate their ideas and views.
C. RELEVANT CONSTITUTIONAL PRINCIPLES
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 peaceably to assemble, and to petition the Government for a redress of grievances.
The Fifth Amendment of the U.S. Constitution provides in pertinent part:
* * * nor shall any person * * * be deprived of life, liberty, or property, without due process of law.
The right to walk the streets, or to meet publicly with one's friends for a noble purpose or for no purpose at all - and to do so whenever one pleases - is an integral component of life in a free and ordered society. Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 844, 31 L.Ed.2d 110 (1972); Bykofsky v. Borough of Middletown, 429 U.S. 964, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976)(Marshall J., dissenting from denial of certiorari); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). This right is rooted in the First Amendment's protection of expression and association, as well as (in this case) the Fifth Amendment's protection of fundamental liberty interests under the doctrine of substantive due process. at 1134.
challenge the regulatory scheme as a whole, including Section 251.56(a)(2)(vii) which allows a Forest Service employee, specifically an "authorized officer," to engage in censorship of the exchange of unpopular ideas, viewpoints, etc. by attaching a term or condition to a special use authorization which he or she deems "necessary to otherwise protect the public interest" and which term or condition could de facto preclude the activity or event for which the special use authorization is being sought from occurring due to impracticality, infeasibility, or otherwise. 9
Having concluded that the Newspaper may facially challenge the Lakewood ordinance, we turn to the merits. Section 901.181, Codified Ordinances, City of Lakewood, provides: "The Mayor shall either deny the application [for a permit], stating the reasons for such denial or grant said permit subject to the following terms. . . ." Section 901.181(c) sets out some of those terms, including: "(7) such other terms and conditions deemed necessary and reasonable by the Mayor." It is apparent that the face of the ordinance itself contains no explicit limits on the mayor's discretion. Indeed, nothing in the law as written requires the mayor to do more than make the statement "it is not in the public interest" when denying a permit application. Similarly, the mayor could grant the application, but require the newsrack to be placed in an inaccessible location without providing any explanation whatever. To allow these illusory "constraints" to constitute the standards necessary to bound a licensor's discretion renders the guarantee against censorship little more than a high-sounding ideal. See Shuttlesworth, 394 U.S., at 150-151, 89 S.Ct., at 938-939. The city asks us to presume that the mayor will deny a permit application only for reasons related to the health, safety, or welfare of Lakewood citizens, and that additional terms and conditions will be imposed only for similar reasons. This presumes the mayor will act in good faith and adhere to standards absent from the ordinance's face. But this is the very presumption that the doctrine forbidding unbridled discretion disallows. E.g., Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The doctrine requires that the limits the city claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice. [Citations omitted]. This Court will not write nonbinding limits into a silent state statute.
at 2150-51. [Emphasis added].
See also, TJ's South, Inc. v. Town of Lowell, 895 F. Supp. 1124 (N.D.Ind. 1995), wherein the District Court stated:
The ordinance also allows officials to give with one hand while taking away with the other. A special exception may be granted subject to "conditions and safeguards." With the exception of one obscure reference to off-street parking and loading zones, the record gives no clue as to what conditions and safeguards Defendants have the authority to require. Under this broad latitude, an official might place conditions on a special exception that are so burdensome that the applicant can derive no real benefit from using it. See Lakewood, 486 U.S. at 769, 108 S.Ct. at 2151 (noting that "the mayor could grant the application, but require the newsrack to be placed in an inaccessible location without providing any explanation whatsoever").
at 1131-32. [Emphasis added].
See also, Santa Fe Springs Realty Corp. v. City of Westminster, 906 F. Supp. 1341, 1366 (C.D.Cal. 1995)(if an ordinance allows a planning commission or city council to "place any condition on the project, without limitation, the ordinance would undoubtedly constitute an unconstitutional prior restraint"); Dease v. City of Anaheim, 826 F. Supp. 336 (C.D.Cal. 1993)(language of conditional use permit ordinance which allowed the city to make decisions based upon such ambiguous criteria as the "general welfare" of the community gave the city unbridled discretion and thus constituted an unconstitutional prior restraint on speech or expression); CR of Rialto, Inc. v. City of Rialto, 975 F. Supp. 1254, 1263-4 (C.D.Cal 1997)(Section 18.66.010 of Chapter 18.66 grants excessive discretion to City officials to impose whatever conditions upon the [Conditional Development Permit] that they deem "necessary and desirable to protect public health, safety and welfare").
"It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the
enjoyment of those freedoms." [Citation omitted]. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license. "The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yield to its demands." [Citations omitted].
89 S.Ct. at 939.
Recognizing the explicit protection accorded speech and the press in the text of the First Amendment, our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license. E.g. Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965)("In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license.")[Emphasis in Original]; Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 742, 84 L.Ed.2d 1093 (1940)("in the First Amendment context, "[o]ne who might have had a license for the asking may ... call into question the whole scheme when he is prosecuted for failure to procure it"). [citing, inter alia, Lovell v. Griffin, 303 U.S. 444, 452-453, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938)("As the ordinance [providing for unbridled licensing discretion] is void on its face, it was not necessary for appellant to seek a permit under it")].
108 S.Ct. at 2143. [Emphasis added].
The defining feature of a "prior restraint" is that it gives a public official "the power to deny the use of a forum in advance of actual expression." [Citation omitted]. Thus, a government engages in a prior restraint when it requires citizens or businesses to obtain permission before making protected speech. [Citations omitted]. Classic examples of prior restraints include requiring a citizen to obtain a permit to parade or speak out on public property and requiring that films be passed by a censorship board before being shown at theaters. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The Lowell ordinance requires TJ's to obtain permission, in the form of a special exception, from the Council (and to some extent the Board) before offering entertainment in its tavern. Therefore, the Lowell ordinance is a prior restraint on speech, and is subject to the constitutional limits on prior restraints. Indeed, prior restraints face a heavy presumption that they are unconstitutional. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225, 110 S.Ct. 596, 604, 107 L.Ed.2d 603 (1990). In a facial challenge to a law, the plaintiff is not merely alleging that the law has been unconstitutionally applied to him or her; rather, the plaintiff argues that the law might be unconstitutionally applied to most anyone. As such, facial challenges involve a plaintiff asserting the rights of others, and for this reason, they are not the norm. Forsyth County, 505 U.S. at 129-31, 112 S.Ct. at 2401. However, First Amendment law has carved out a place for facial challenges to prior restraints. A plaintiff can challenge a permit scheme on its face if the scheme "vests unbridled discretion in the government official over whether to permit or deny expressive activity." City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988). A facial challenge will lie whether or not the plaintiff has applied for a permit under the scheme at issue, and whether or not the scheme has been or could be constitutionally applied to the plaintiff. [Citations omitted]. In this sense, the prior restraint doctrine perhaps has a prophylactic role.
895 F. Supp. at 1129.
Court's proceeding to decide this issue implies that the District Court was correct in allowing a facial challenge to the ordinance and that a facial challenge will lie under such circumstances. Moreover, as plaintiff further points out, in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596 (1990), decided after Ward, the U.S. Supreme Court ruled that the plaintiffs therein had standing to mount a facial challenge to certain aspects of a licensing scheme.
The overbreadth doctrine allows a plaintiff "to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Thus, it serves to overcome what would otherwise be a plaintiff's lack of standing. Technically, the overbreadth doctrine does not apply if the parties challenging the statute engage in the allegedly protected expression. [Citation omitted]. This does not mean that plaintiffs cannot challenge an ordinance on its face, however, if the ordinance restricts their own constitutionally protected conduct. Plaintiffs may seek directly on their own behalf the facial invalidation of overly broad statutes that "create an unacceptable risk of the suppression of ideas," Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965 n. 13, 104 S.Ct. 2839, 2851, n. 13, 81 L.Ed.2d 786 (1984)(internal quotation omitted); thus, whether the "overbreadth doctrine" applies to their First Amendment challenge is more of a technical academic point than a practical concern. See Waters, 711 F.Supp. at 1133-34 & n. 15.
114 F.3d at 949.
Some facial challenges require courts to ignore the prudential rule that a litigant has standing to vindicate only his own constitutional rights. City Council v. Taxpayers for Vincent, ___ U.S. ___, 104 S.Ct. 2118, 2125, 80 L.Ed.2d 772 (1984)("Vincent"). A litigant is allowed, for example, to assert that enforcing a statute will chill the protected speech of third parties, even though as applied to him the law is constitutional. Id. In such cases, the court entertains the claim because it recognizes that those whose expression is chilled cannot be expected to adjudicate their rights, since by definition they are unwilling to disobey the law. See L. Tribe, American Constitutional Law 720 (1978)("L. Tribe"). The concern that constitutional adjudication be avoided whenever possible is simply outweighed by the risk to society of losing the speech of those deterred from engaging in protected speech. Munson, 104 S.Ct. at 2847. There is another "quite different" way in which a plaintiff may challenge a statute on its face. Vincent, 104 S.Ct. at 2124. A litigant may contend, for example, that a statute is not only
unconstitutional as applied to his conduct, but also unconstitutional on its face because "any attempt to enforce such legislation would create an unacceptable risk of the suppression of ideas." Id. at 2125. In cases of this type, a holding of facial invalidity expresses the conclusion that the statute restricts protected activity in every conceivable application. Munson, 104 S.Ct. at 2852 n. 13.
743 F.2d at 1352. 10
See also, Rubin v. City of Santa Monica, 823 F. Supp. 709 (C.D. Cal 1993)("For purposes of standing under Article III of the Constitution, litigants need not actually apply for and be denied a permit prior to bringing a constitutional challenge against an ordinance which allegedly vests unbridled discretion in government officials to permit or deny expressive activity." (Citing Gaudiya Vaishnava Soc. v. City of San Francisco, 952 F.2d 1059, 1062 (9th Cir. 1990) cert denied, ___ U.S. ___, 112 S.Ct. 1951, 118 L.Ed.2d 555 (1992)).
community gave the city unbridled discretion and thus constituted an unconstitutional prior restraint on speech or expression).
Under the proposed and final rules, applications for noncommercial group uses cannot be granted or denied at will, on the basis of prejudice, on the basis of what might happen, or on the basis of a personal interpretation of the public interest. Rather, these applications must be granted or denied on the basis of the specific, content-neutral evaluation criteria at 251.54(h)(1) that vest little or no discretion in the authorized officer. [Emphasis added] 1160 FR 45277.
(i) Response to applications for all other special uses. An authorized officer may deny issuance of [a special use] authorization for all other special uses, including group events not subject to paragraph (h) of this section, if that officer determines that: (2) The proposed use would not be in the public interest.
and Section 251.60(b) whereat it provides:
A special use authorization may be suspended, revoked, or terminated at the discretion of the authorized officer for reasons in the public interest, except that this provision shall not apply to a special use authorization for a noncommercial group use. [Emphasis added]
i.e. the protection of resources and improvements on National Forest System lands, the allocation of space among potential or existing uses and activities, and public health and safety concerns. 15 The key word in the phrase found in Section 251.56(a)(2)(vii) that defeats plaintiff's attempted narrowing construction of this phrase is the word "otherwise." Black's Law Dictionary, Revised Fourth Edition, West Publishing Company (1968) defines the word "otherwise" as "In a different manner; in another way, or in other ways."
otherwise, adv. 1 : in a different way or manner : DIFFERENTLY. 2 : in different circumstances : under other conditions. 3 : in other respects. 16
otherwise, adj. 1 : DIFFERENT. 2 : under different circumstances.
As seen, "otherwise," if used as a pronoun, means "something or anything else," and used as an adverb, "otherwise" means "In a different way or manner." Neither of these alternative definitions can be contorted into the ejusdem generis meaning of "limited to things of the same kind, class or nature as those specifically enumerated." In short, the rule of ejusdem generis is determined not to be applicable.
912 F. Supp. at 1069, note 4. [Emphasis in original].
where general words follow the enumeration of particular persons or things, the general language is held to apply only to persons or things of the same general nature or kind as those enumerated.... Thus, in a statute forbidding the concealment on one's person of "pistols, revolvers, derringers, or other dangerous weapons," the term "dangerous weapons" may be construed to comprehend only dangerous weapons of the kind enumerated, i.e., firearms, or perhaps more narrowly still, handguns. at 1486.
It has been expressly held or recognized in the following cases that the ejusdem generis rule will not be applied in construing a statute where the application of the rule will render the general words of the statute meaningless: United States v Mescall (1909) 215 US 26, 54 L Ed 77, 30 S Ct 19; Mason v United States (1923) 260 US 545, 67 L Ed 396, 43 S Ct 200; Mid-Northern Oil Co. v Walker (1925) 268 US 45, 69 L Ed 841, 45 S Ct 440; Factor v Laubenheimer (1933) 290 US 276, 78 L Ed 315, 54 S Ct 191; United States v Alpers (1950) 338 US 680, 94 L Ed 457, 70 S Ct 352.
at 46 L.Ed.2d 884.
Applying ejusdem generis here means that the "public interest" referred to in subsection (vii) is no broader than the categories listed in subsections (i)-(vi), which address the various aspects of the public interests identified by the Forest Service in the Final Rule --i.e., the protection of resources and improvements on National Forest System lands, the allocation of space among potential or existing uses and activities, and public health and safety concerns. Plaintiff's Opening Brief, p. 30.
. . . Whilst [the rule of ejusdem generis] is aimed to preserve a meaning for the particular words, it is not intended to render meaningless the general words. Therefore, where the particular words exhaust the class, the general words must be construed as embracing something outside of that class. If the particular words exhaust the genus, there is nothing ejusdem generis left, and in such case we must give the general words a meaning outside of the class indicated by the particular words, or we must say that they are meaningless, and thereby sacrifice the general to preserve the particular words. In that case the rule would defeat its own purpose.
at 30 S.Ct. 20.
Michael D. Linick, aka Strider
P.O. Box 1125
Eugene, OR 97440
e-mail address: Oregonstrider@Yahoo.com