Susan Oki Mollway, United States District Judge.
Plaintiff Fredrick R. Honig bought land on Maui zoned for agricultural use and leased that land to Plaintiff Spirit of Aloha Temple, which, among other things, conducted a commercial wedding operation on the agricultural land until the County of Maui told it to stop. Thereafter, Plaintiffs applied for a Special Use Permit to build a church and hold religious events, including weddings, on the agriculture land, uses not allowed without a Special Use Permit. After the requested Special Use Permit was denied, Plaintiffs filed this action, asserting federal and state claims against the Maui Planning Commission and the County of Maui.
On January 27, 2016, this court dismissed the Planning Commission as a party and declined to exercise supplemental jurisdiction over Count X, which asked this court to resolve an appeal from the Planning Commission's denial of the Special Use Permit. This court stayed the remaining claims as a matter of Pullman abstention, allowing Plaintiffs to appeal the denial of the Special Use Permit through the state courts.
In the state court, Plaintiffs reserved their right to have their federal claims decided by this court, informing the state trial court that the only claim before the state court involved the appeal of the Planning Commission's decision. On November 17, 2016, the state trial court affirmed the Planning Commission's decision. No further appeal was filed. This court subsequently dissolved the stay so that the remaining claims could be addressed.
The State of Hawaii, which intervened in this action, now moves for summary judgment, arguing that res judicata bars the prior restraint claim asserted in Count V and that, even if res judicata does not apply, there was no impermissible prior restraint as a matter of law. Plaintiffs filed a counter motion for summary judgment with respect to the prior restraint claim. This court rules that res judicata does not bar the prior restraint claim and turns to the merits of that claim, granting the State of Hawaii's motion and the County of Maui's Joinder therein with respect to the merits of that claim.
The state also seeks partial summary judgment with respect to Counts I, II, IV, VI, VII, VIII, and IX (no Count III is asserted in the Complaint), arguing that Plaintiffs are only asserting as applied challenges in those counts, not facial challenges. Plaintiffs do not oppose this part of the motion, and this court therefore rules that only as applied challenges are pled in those counts. The court leaves the merits of those challenges for later proceedings.
The factual background for this case was set forth in this court's Order Denying Motions for Summary Judgment of July 20, 2018. See 322 F.Supp.3d 1051. That background is incorporated by reference and is summarized and supplemented below.
In September 2007, Spirit of Aloha Temple, Inc., was incorporated; Honig was listed as its Senior Minister. Honig and Spirit of Aloha Temple practice "Integral Yoga." For purposes of these motions, no party contests the validity of Honig's religion or the sincerity of his beliefs.
On October 12, 2007, Spirit of Aloha Temple, through Honig, applied for a Special Use Permit for the property to be used for a "Church, church operated bed and breakfast establishment, weddings, special events, day seminars, and helicopter landing pad." ECF No. 183-3, PageID # 2592. On June 30, 2008, Spirit of Aloha Temple amended the Special Use Permit application to define Spirit of Aloha Temple's activities as including "a weekly service, classes, special events, day programs and weddings." ECF No. 183-3, PageID # 2593.
On March 30, 2010, the Planning Commission for the County of Maui held a hearing on the Special Use Permit application. See Findings of Fact, Conclusions of Law and Decision and Order of Maui Planning Commission. See ECF No. 183-3, PageID # 2583. The Maui Planning Commission voted 5 to 3 to deny the application. Id., PageID #s 2586-87; 2590.
In September 2012, the County of Maui issued Honig three notices of violation for building a structure without a proper permit, conducting transient vacation rentals on property where such rentals were not allowed, and conducting commercial weddings on property where such weddings were not allowed. The County of Maui ordered Honig to cease and desist the conduct. See ECF No. 183-8, PageID #s 2877-78. The County of Maui and Honig ultimately settled these matters. See id., PageID #s 2877-83.
On November 21, 2012, Spirit of Aloha Temple, through Honig, submitted a second Special Use Permit application to use the property for church activities. ECF No. 183-6, PageID #2803. Spirit of Aloha Temple sought to use the property for a classroom on weekdays; a weekly church service; and educational, inspirational, and spiritual events, including "Hawaiian Cultural Events, such as Hula performances, Seminars on Hawaiian Plant Based Nutrition, Cultural Music Performances, and Spiritual commitment ceremonies including weddings." Id., PageID # 2811.
The Maui Planning Commission denied the 2012 Special Use Permit application, stating:
ECF No. 185-9, PageID # 3288-89.
The Maui Planning Commission noted that section 205-6 of Hawaii Revised Statutes allows certain "unusual and reasonable uses" within agricultural and rural
In allowing "[c]ertain `unusual and reasonable' uses within agricultural ... districts other than those for which the district is classified ...," http://luc.hawaii.gov/wp-content/uploads/2012/09/LUC-Admin-Rules_Chapter15-15_2013.pdf (Nov. 2, 2013), section 15-15-95(c) provides five "guidelines" for determining uses that "may" be permitted:
Id. These "guidelines" are at the heart of the parties' dispute in this case.
The Commission concluded that subsections 15-15-95(c)(2) and (3) were not satisfied.
On November 26, 2014, Plaintiffs filed the Complaint in this matter. See ECF No. 1. Count X sought to appeal the Maui Planning Commission's denial of the 2012 Special Use Permit application. The Complaint asserted other federal and state claims, including a prior restraint claim based on the Maui Planning Commission's allegedly unbridled discretion to grant or deny the Special Use Permit. See Complaint, Count V, ECF No. 1, PageID # 37.
In state court, Plaintiffs clearly announced three times that, while pursuing the administrative appeal in state court, they were reserving their right to have their federal claims adjudicated in federal court. First, on February 25, 2016, in their notice of appeal with respect to the agency decision, they told the state court in a footnote:
ECF No. 215-5, PageID # 4308 n.1.
Second, in their Opening Brief filed in state court on April 25, 2016, Plaintiffs reiterated that reservation. ECF No. 215-6, PageID # 4387. This time, Plaintiffs added, "The only cause of action to be determined in this state court agency appeal is Maui County's violation of the Hawaii State Administrative Procedures Act, Hawaii Revised Statutes, Chapter 91 et seq." Id.
Third, in oral argument in state court, Plaintiffs stated:
ECF No. 215-7, PageID # 4417.
On November 17, 2016, the Circuit Court of the Second Circuit, State of Hawaii, affirmed the Maui Planning Commission's decision, but did not adjudicate any of the claims that this court had retained but stayed. See ECF No. 183-14. The state court did not "find clear error in the Maui Planning Commission's factual findings or error in its legal conclusions. Moreover, the Commission's decision does not appear to be arbitrary, capricious, or an abuse of discretion." Id., PageID # 3005. The state court further noted:
Id. The state court went on to determine that
Id., PageID #s 3005-06. No appeal was filed and the state-court agency appeal is now a final decision on the merits.
The stay of the remaining claims before this court has been dissolved and the State of Hawaii has intervened as a Defendant. See ECF Nos. 114 and 207.
On July 20, 2018, this court denied motions for summary judgment. See ECF 200. The summary judgment standard was set forth in that order and is incorporated here by reference.
Before the court are counter motions for summary judgment and a joinder with respect to the prior restraint claim asserted in Count V, and the State of Hawaii's unopposed partial summary judgment motion seeking a determination that only factual (i.e., as applied) challenges are raised in the remaining counts. As discussed in the following pages, the State of Hawaii's motion with respect to Count V and the County of Maui's joinder therein are granted, and Plaintiffs' counter motion is denied.
The State of Hawaii seeks summary judgment with respect to the prior restraint claim asserted in Count V, arguing that the state court judgment with respect to the agency appeal should have res judicata effect and thus bars Count V. This court disagrees.
At the outset, this court notes that it stayed this case pending the state court's determination of Count X, in which Plaintiffs challenged the Planning Commission's denial of the permit application. This court did not direct Plaintiffs to seek a state court determination of any other count pled in this case, and Plaintiffs filed an administrative appeal in state court limited to the matters raised in Count X. See ECF No. 215-5.
Nor does the doctrine of res judicata operate to bar litigation of counts other than Count X.
The res judicata doctrine precludes parties or their privies from relitigating claims that were or could have been raised in an earlier action in which there is a final judgment on the merits. See Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Here, while the state court has issued a final judgment with respect to the agency appeal, that final judgment has no res judicata effect with respect to the federal claims originally asserted in this court. The federal claims were stayed pursuant to this court's exercise of Pullman abstention, and Plaintiffs specifically told the state court they were reserving those federal claims for this court to adjudicate.
Los Altos El Granada Inv'rs v. City of Capitola, 583 F.3d 674, 685 (9th Cir. 2009) (quotation marks, alterations, and citations omitted).
England provides that "a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims" should not be "compelled, without his consent and through no fault of his own, to accept instead a state court's determination of those claims." 375 U.S. at 415, 84 S.Ct. 461. England notes that a litigant may therefore "reserve" the right to return to federal court to have federal claims adjudicated. Id. at 421-22, 84 S.Ct. 461. However, the litigant may forgo the right to have federal claims decided by a federal court by "freely and without reservation" submitting the claims for adjudication by a state court. Id. at 419, 84 S.Ct. 461.
In United Parcel Service, Inc. v. California Public Utilities Commission, 77 F.3d 1178, 1186 (9th Cir. 1996), the Ninth Circuit held that a footnote reservation made on the first page of a nine-page motion was a sufficient England reservation. In the present case, Plaintiffs' three "reservations" exceeded that sufficient United Parcel Service reservation. Plaintiffs' statements were not equivalent to something buried on the 149th page of a motion. See Lurie v. Cal., 633 F.2d 786, 787-88 (9th Cir. 1980). Instead, Plaintiffs told the state court in the Notice of Appeal and Opening Brief:
ECF No. 215-5, PageID # 4308 n.1; ECF No. 215-6, PageID # 4387. The Opening Brief went on to say, "The only cause of action to be determined in this state court agency appeal is Maui County's violation of the Hawaii State Administrative Procedures Act, Hawaii Revised Statutes, Chapter 91 et seq." Id.
The State of Hawaii argues that Plaintiffs essentially waived their first two reservations with respect to the federal prior restraint claim when, in oral argument, they supposedly limited the reservation to claims under "the Federal Religious Land Use and Institutionalized Persons Act, 42 USC, as well as ... claims under the First Amendment for religious freedom and the Fourteenth Amendment." ECF No. 215-7, PageID # 4417. But Plaintiffs appear to have simply been incomplete during oral
Reading the three "reservations" together with Plaintiffs' statement to the state court that it was only being asked to adjudicate the agency appeal and not any federal claim, this court concludes that Plaintiffs reserved their prior restraint claim. This court rejects the State of Hawaii's assertion that Plaintiffs' reservation was not good enough because it did not specifically mention the prior restraint claim. Plaintiffs told the state court that this court had stayed their federal claims pending the outcome of the state-court agency appeal. At the same time, Plaintiffs informed the state court that they were reserving all of their federal claims for adjudication by this court. Plaintiffs' reservations were sufficient to inform the state court that they were seeking federal judicial resolution of their prior restraint claim.
Of course, while ruling that Plaintiffs' England reservation makes the res judicata doctrine inapplicable to the prior restraint claim, this court is not ignoring the collateral estoppel issue. To the extent a necessary issue may have been fully litigated in state court that is identical to an issue before this court, Plaintiffs are precluded from taking a second bite of the apple. An England reservation does not "prevent[ ] the operation of the issue preclusion doctrine." San Remo Hotel, L.P. v. San Francisco City & Cty., 364 F.3d 1088, 1095 (9th Cir. 2004) (quotation marks and citation omitted). Additionally, under the circumstances presented here, no party may relitigate the merits of the agency appeal. See Allen, 449 U.S. at 94, 101 S.Ct. 411.
Both the State of Hawaii and Plaintiffs seek summary judgment with respect to the merits of the prior restraint claim asserted in Count V. The court grants summary judgment in favor of the State of Hawaii with respect to that count.
Count V asserts that the County of Maui's second denial of the Special Use Permit to Honig and Spirit of Aloha Temple amounts to a prior restraint in violation of their First Amendment free speech and free exercise rights, actionable under 42 U.S.C. § 1983. See Moonin v. Tice, 868 F.3d 853, 858 (9th Cir. 2017) (examining First Amendment prior restraint claim asserted under § 1983); Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 903 (9th Cir. 2007) (same).
The First Amendment provides that "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;
The Ninth Circuit has further explained that a regulation is an unconstitutional prior restraint if it "vests unbridled discretion in a government official over whether to permit or deny expressive activity." Kreisner v. City of San Diego, 1 F.3d 775, 805 (9th Cir. 1993) (quotation marks and citation omitted). An ordinance or regulation that makes the peaceful enjoyment of First Amendment rights "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." Epona v. Cty. of Ventura, 876 F.3d 1214, 1222 (9th Cir. 2017). "That is, absent definite and objective guiding standards, permit requirements present a threat of content-based, discriminatory enforcement." Id. (quotation marks and citation omitted). "While permitting guidelines need not eliminate all official discretion, they must be sufficiently specific and objective so as to effectively place some limits on the authority of City officials to deny a permit." Id. (quotation marks and citation omitted).
The question before this court with respect to Count V is whether the Maui Planning Commission had unbridled discretion to deny Plaintiffs' second Special Use Permit application. To answer this question, the court must analyze the statutes and regulations governing the Planning Commission. Section 205-4.5(a) of Hawaii Revised Statutes sets forth permissible uses of property located in agricultural districts, such as the Haumana Road property at issue here. These uses do not include churches or wedding operations. With certain exceptions, section 205-4.5(b) of Hawaii Revised Statutes prohibits uses that are not expressly permitted under section 205-4.5(a). The exception applicable here is a Special Use Permit granted by a county planning commission, as set forth in section 205-6 of Hawaii Revised Statutes.
In considering whether to grant or deny Plaintiffs a Special Use Permit, the Maui Planning Commission was guided by Maui County Code, Title 19, Article II, Chapter 19.30A. https://library.municode.com/hi/county_of_maui/codes/code_of_ordinances?nodeId=TIT19ZO_ARTIICOZOPR_CH19.30AAGDI_19.30A.060SPUS.
An ordinance may be facially unconstitutional in one of two ways: (1) by
Courts recognize facial overbreadth when "conduct has required official approval under laws that delegated standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights." Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The overbreadth type of facial challenge is at issue here; Plaintiffs assert that section 15-15-95(c) amounts to an unconstitutional prior restraint by giving the Maui Planning Commission standardless discretionary power to grant or deny Special Use Permit applications. G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1082 (9th Cir. 2006) ("The prior restraint doctrine requires review of both the law's procedural guarantees and the discretion given to law enforcement officials.... To avoid impermissible discretion, the challenged ordinance should contain adequate standards to guide the official's decision and render it subject to effective judicial review." (quotation marks and citation omitted)).
In adjudicating Plaintiffs' overbreadth challenge based on alleged unbridled discretion amounting to a prior restraint, this court is mindful that its power to declare a statute or regulation unconstitutional derives from its power and duty to decide cases and controversies. That is, to satisfy Article III's case and controversy requirement, Plaintiffs must have the "irreducible minimum" of "constitutional standing," meaning they must have: 1) an injury in fact that is "actual, concrete, and particularized," 2) a causal connection between defendant's conduct and the plaintiff's injury, and 3) a likelihood that the injury can be redressed by the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Get Outdoors II, LLC v. City of San Diego, Cal., 506 F.3d 886, 891 (9th Cir. 2007). Federal courts supplement this "constitutional standing" with the doctrine of "prudential standing," which requires Plaintiffs' claims to be "sufficiently individualized to ensure effective judicial review." Get Outdoors II, 506 F.3d at 891.
Prudential standing issues are not applicable to cases involving First Amendment freedom of expression. See Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ("It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable."); Get Outdoors II, 506 F.3d at 891 ("When a plaintiff states an overbreadth claim under the First Amendment ..., we suspend the prudential standing doctrine because of the special nature of the risk to expressive rights.").
A First Amendment overbreadth challenge "operates as a narrow exception permitting the lawsuit to proceed on the basis 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.'" Id. (quoting Broadrick, 413 U.S. at 612, 93 S.Ct. 2908).
In other words, "facial attacks on the discretion granted a decisionmaker are not dependent on the facts surrounding any particular permit decision." Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1020 (9th Cir. 2009) (quotation marks, alterations, and citation omitted).
Courts allow challenges to prior restraints of protected expression because of "the evil inherent in a licensing system. The power of the licensor ... is pernicious not merely by reason of the censure of particular comments but by reason of the threat to censure comments on matters of public concern. It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion." Thornhill, 310 U.S. at 97, 60 S.Ct. 736 (1940). "[T]he mere existence of the licensor's unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused." City of Lakewood, 486 U.S. at 757, 108 S.Ct. 2138; Epona v. Cty. of Ventura, 876 F.3d 1214, 1221 (9th Cir. 2017) ("such restraints may have a chilling effect on protected speech because potential speakers may choose to self-censor rather than either acquire a license or risk sanction for speaking without one"). Additionally,
City of Lakewood, 486 U.S. at 758, 108 S.Ct. 2138; Epona, 876 F.3d at 1221 ("where a regulation lacks clear standards for the issuance of a permit, an as-applied challenge may fail to provide sufficient protection against content-based censorship").
While "prudential standing" requirements are relaxed for First Amendment
Get Outdoors II is instructive. Get Outdoors II submitted billboard permit applications to the City of San Diego. The city denied the applications based on an ordinance prohibiting new billboards, the failure of the applicant to submit key documents, and the size and height of the proposed billboards. Id. at 889-90. Get Outdoors II argued that the billboard regulations were overbroad and constituted an impermissible prior restraint because officials had unbridled discretion to grant or deny the billboard permits. Id. at 890.
After recognizing that "prudential standing" concerns are relaxed for overbreadth claims, the Ninth Circuit ruled that Get Outdoors II lacked "constitutional standing" to assert its claims. Id. at 891, 895. While a party subject to a licensing statute that provides unbridled discretion to a government official may challenge the statute without first applying for the permit, the Ninth Circuit ruled that, to comport with "constitutional standing" principles, the plaintiff still had to be "`[o]ne who might have had a license for the asking.'" Id. (quoting Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 84 S.Ct. 1093 (1940)). Get Outdoors II's billboard applications were denied on grounds that were constitutionally valid (e.g., the proposed billboards exceeded the number, height, and size limitations). Moreover, Get Outdoors II indicated no intent to submit applications for billboards that complied with the requirements. The Ninth Circuit therefore ruled that Get Outdoors II was not genuinely threatened by an unconstitutional prior restraint. Id. That is, Get Outdoors II, if it stuck with its original application, was not a plaintiff who "might have had a license for the asking." Id.
The reasoning of Get Outdoors II has been criticized. See, e.g., Nittany Outdoor Advertising, LLC v. College Township, 22 F.Supp.3d 392, 410 (M.D. Pa. 2014) (saying the Ninth Circuit's approach seems "misguided"). But whatever complications are presented, this court is committed to following the binding precedent in Get Outdoors II and the tenets announced in Supreme Court and other applicable Ninth Circuit decisions.
For example, the Supreme Court has stated that, in exercising jurisdiction, courts will not "anticipate a question of constitutional law in advance of the necessity of deciding it" and will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). "Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." Id. Thus, a defendant who was not sentenced to death may not challenge a death penalty statute. Houston v. Roe, 177 F.3d 901, 907, (9th Cir. 1999). Similarly, a defendant may not challenge a prohibition on selling bald eagle parts as violative of his First Amendment freedom of religion rights when selling such eagle parts is not actually part of his religion. United States v. Top Sky, 547 F.2d 486, 488-89 (9th Cir. 1976).
Given the "constitutional standing" requirements applicable to First Amendment overbreadth claims, courts
Herson v. City of San Carlos, 714 F.Supp.2d 1018, 1024 (N.D. Cal. 2010); accord Get Outdoors II, LLC v. City of El Cajon, 2007 WL 4170230, at *5 (S.D. Cal. Nov. 20, 2007) (holding that, because billboard sign applicant never showed that it would have been genuinely threatened by a prior restraint given its failure to propose billboard within height and size limitations, applicant lacked standing to pursue claims), off'd sub nom. Get Outdoors II, LLC v. City of El Cajon, Cal., 403 F.App'x 284 (9th Cir. 2010) (affirming in memorandum decision determining plaintiff's lack of standing for failure to "show how this court could act to overturn denial of the permits, and thereby redress those injuries").
Put another way, in analyzing the causation component of standing, a court should look at whether the plaintiff has shown that its injury is "fairly traceable" to a challenged statutory provision. Republican Party of Minn. v. Klobuchar, 381 F.3d 785, 792 (8th Cir. 2004).
Here, Plaintiffs challenge subsections (1) through (4) of section 15-15-95. The court notes that Plaintiffs are not challenging subsection 15-15-95(c)(5) in this action. See ECF No. 225, PageID #s 4876-77 (indicating that Plaintiffs are only challenging subsections 15-15-95(c)(1) through (4)). This court notes that the Planning Commission made no findings with respect to subsections (1) and (4) and does not appear to have considered them in denying Plaintiff the requested permit. Having suffered no injury tied to subsections (1) and (4), Plaintiffs lack constitutional standing to challenge those subsections. More fundamentally, Plaintiffs appear to have misapplied the very concept of a facial challenge in the context of a challenge to all or any part of section 15-15-95(c). As explained in the following paragraphs, section 15-15-95(c), by its terms, speaks to the Planning Commission's discretion in granting a Special Use Permit, which is not the act Plaintiffs complain about.
Section 15-15-95(c) provides, "Certain `unusual and reasonable' uses within agricultural and rural districts other than those for which the district is classified may be permitted." (emphasis added). Plaintiffs argue that the word "may" impermissibly vests the Maui Planning Commission with unbridled discretion to decline
On its face, section 15-15-95(c) speaks to the Planning Commission's ability to deviate from the overarching restriction on nonagricultural uses in an agricultural district. Any discretion articulated by section 15-15-95(c) is thus the discretion to grant an exception to or variance from the "default" prohibition on nonagricultural issues. If this discretion could be viewed as unbridled, as Plaintiffs allege, any facial challenge should come in the context of the granting of a variance. Thus, for example, a person purporting to be aggrieved by the granting of a Special Use Permit to a neighboring business might bring a facial challenge to section 15-15-95(c).
Plaintiffs instead bring a purported facial challenge to section 15-15-95(c) in the context of the denial of a permit application. Because section 15-15-95(c) on its face goes to discretion to grant a permit, a challenge to section 15-15-95(c) in the context of a denial must be a challenge to the application of the provision.
Even if Plaintiffs could be said to be raising a facial challenge to the discretion implicit in the use of the word "may" in section 15-15-95(c), that challenge would fail.
In Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), the Supreme Court examined a Chicago ordinance that provided that "the Park District may deny an application for permit" on any one of a number of grounds. Id. at 319, n.1, 122 S.Ct. 775. The Supreme Court rejected the argument that the ordinance failed to contain adequate standards to guide an official's decision and render it subject to effective judicial review. Id. at 324, 122 S.Ct. 775. The Court noted that an application could be denied
Id. The Supreme Court stated, "These grounds are reasonably specific and objective, and do not leave the decision to the whim of the administrator." Id. (quotation marks and citation omitted).
The Court specifically rejected the contention "that the criteria set forth in the ordinance are insufficiently precise because they are described as grounds on which the Park District `may' deny a permit, rather than grounds on which it must do so." Id. at 324-25, 122 S.Ct. 775 (stating, "we think the permissive nature of the ordinance furthers, rather than constricts, free speech"). The use of the word "may" in section 15-15-95(c), like the use of the word "may" in the ordinance in Thomas, does not, by itself, provide the Maui Planning Commission with improper unbridled discretion, quite apart from the problem noted earlier with the focus in section 15-15-95(c) on when a variance may be granted.
Gaudiya Vaishnava Society v. City & County of San Francisco, 952 F.2d 1059, 1060 (9th Cir. 1990), relied on by Plaintiffs, is distinguishable. Gaudiya examined an ordinance providing that San Francisco's "Chief of Police may issue a permit" to nonprofits wishing to sell merchandise. Id. at 1065. Because the ordinance lacked specific grounds for granting or denying a permit, the Ninth Circuit concluded that it improperly gave the Chief of Police unfettered
Plaintiffs also argue that the reference in section 15-15-95(c) to "guidelines" simply provides guidance that the Maui Planning Commission was free to accept or reject, rather than the "definite and objective guiding standards" required by the Ninth Circuit's decision in Epona, 876 F.3d at 1222. This court is unpersuaded.
This court has previously noted,
Spirit of Aloha Temple v. Cty. of Maui, 2016 WL 347298, at *6 (D. Haw. Jan. 27, 2016).
But Epona recognized that "permitting guidelines need not eliminate all official discretion." Id. Instead, guidelines "must be sufficiently specific and objective so as to effectively place some limits on the authority of City officials to deny a permit." Id. (quotation marks and citation omitted). As discussed in more detail later in this order, the language of section 15-15-95(c) is specific enough that the reference to "guidelines" does not render the provision an impermissible prior restraint.
Plaintiffs' counter motion seeks summary judgment with respect to the prior restraint claim asserted in Count V on the additional ground that section 15-15-95 lacks the procedural safeguard of a requirement that a decision be timely. But no such alleged defect is pled in the Complaint.
Count V incorporates the previous paragraphs of the Complaint and then states:
ECF No. 1, PageID # 37. Count V puts Defendants on notice that the "standards" allegedly provided the Maui Planning Commission with unbridled discretion, but does not put them on notice of any alleged lack of procedural safeguards. Nothing in Count V puts Defendants on notice that Plaintiffs believe the ordinance is invalid because it lacks a time-frame in which the commission must decide whether to grant or deny the permit. Instead, the allegation goes to alleged unbridled discretion in the substance of a decision. See id.
Plaintiffs argue that, pursuant to Rule 8(a) of the Federal Rules of Civil Procedure,
Paragraph 85 alleges the date on which Plaintiffs filed their Special Use Permit application, as well as some of the details of that application. See ECF No. 1, PageID #s 18-19. Paragraph 91 alleges that the Maui Planning Commission scheduled a public hearing for March 25, 2014. Id., PageID # 21. Paragraph 112 alleges that the hearing was held on March 25, 2014. Id., PageID # 26. Paragraph 120 alleges that, on April 8, 2014, the Maui Planning Commission reconsidered the Special Use Permit application. While these paragraphs discuss the dates of various actions with respect to the application, nothing in the Complaint puts Defendants on notice that Plaintiffs are challenging the absence of any deadline.
Fontana, cited by Plaintiffs, recognizes that pleadings must put opposing parties on notice of a claim. 262 F.3d at 877. While Plaintiffs were not required to allege their legal theories, "doing so makes it more likely that the opposing party will have notice and [a] better understanding of what is at issue." Id. At the very least, the factual allegations relied on should be sufficient to provide notice. The dates of certain events do not put an opposing party on notice that Plaintiffs are claiming the process was allowed to be slow.
This court turns now to an examination of a specific guideline relied on by the Maui Planning Commission. Earlier in this order, this court discussed the mismatch between Plaintiffs' facial challenge to section 15-15-95(c) and the actual language of subsection 15-15-95(c), which speaks to the granting of Special Use Permits, not to the denial Plaintiffs complain about. Even assuming that that lack of "fit" were not fatal to Plaintiffs' facial challenge, Plaintiffs do not show an actionable constitutional defect in the language of subsection 15-15-95(c)(3).
Subsection 15-15-95(c)(3) provides that an "unusual and reasonable use" may be permitted if the "proposed use would not unreasonably burden public agencies to provide roads and streets, sewers, water drainage and school improvements, and police and fire protection." Plaintiffs argue that this guideline provided the Maui Planning Commission with unbridled discretion with respect to denying Plaintiffs' Special Use Permit application.
As discussed above, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. 935. Thus, an ordinance making "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
"Licensing regimes whose sole purpose is to regulate competing uses of public space are evaluated as a content-neutral time, place, and manner permitting scheme," rather than "the extraordinary procedural requirements governing traditional prior restraints." Seattle Affiliate of Oct. 22nd Coal. to Stop Police Brutality, Repression & Criminalization of a Generation v. City of Seattle, 550 F.3d 788, 798 (9th Cir. 2008). To be a valid time, place, and manner restriction for purposes of the First Amendment, a permitting ordinance "(1) must not delegate overly broad discretion to a government official; (2) must not be based on the content of the message; (3) must be narrowly tailored to serve a significant governmental interest; and (4) must leave open ample alternatives for communication." Id. at 798.
In analyzing ordinances that do not require officials to explain the permitting decision and do not provide for review of the decision, courts "look to the totality of the factors to assess whether this Ordinance contains adequate safeguards to protect against official abuse." Id. at 799.
In City of Lakewood, the Supreme Court explained:
Id. at 758.
Unless an ordinance has "definite and objective guiding standards, permit requirements present a threat of content-based, discriminatory enforcement." Epona, 876 F.3d at 1222. Permitting guidelines "must be sufficiently specific and objective so as to effectively place some "limits on the authority of City officials to deny a permit." Id. (quotation marks and citations omitted). Whether an ordinance is "sufficiently specific and objective" requires a "context specific" analysis. Id.
In Shuttlesworth, the Supreme Court held that a statute granted excessive discretion in allowing a city to deny a parade permit if "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused." 394 U.S. at 149-50, 89 S.Ct. 935. The Supreme Court ruled that the parade statute conferred upon officials "virtually unbridled and absolute power" to prohibit parades, as the officials were guided "only by their own ideas of `public welfare, peace, safety, health, decency, good order, morals or convenience.'" Id. at 150, 89 S.Ct. 935. The Supreme Court ruled that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Id. at 150-51, 89 S.Ct. 935.
The Ninth Circuit has established that an ordinance is unconstitutionally vague when it provides an official with discretion to deny a permit based on ambiguous and subjective reasons. For example, in Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 817-19 (9th Cir. 1996), the Ninth Circuit invalidated a sign permit ordinance requiring city officials to find that a sign "will not have a harmful
Id. at 819. The Ninth Circuit described the ordinance as improperly giving city officials "discretion to deny a permit on the basis of ambiguous and subjective reasons." Id. at 818.
Similarly, in Seattle Affiliate of the October 22nd Coalition, the Ninth Circuit invalidated a parade ordinance giving the chief of police unbridled discretion to force an organization to march on sidewalks, rather than in the streets. While the ordinance granted no discretion in issuing a parade permit, it allowed the chief of police to "modify the place and hour of formation, the proposed line of movement or march, and the scheduled starting time in the interest of vehicular or pedestrian traffic safety." 550 F.3d at 791, 803. The Ninth Circuit explained:
Id., 550 F.3d at 802-03. Because the chief of police had unbridled discretion with respect to the details of the parade, such as moving a parade off the streets and onto a sidewalk, the parade ordinance violated the First Amendment. Id. at 803.
While Shuttlesworth, City of Moreno Valley, and Seattle Affiliate of the October 22nd Coalition invalidated provisions, the Ninth Circuit, in G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064 (9th Cir. 2006), held that there was no First Amendment violation with respect to a sign ordinance that regulated the type, size, and design of signs. "In addition to regulating the dimensions and characteristics of all signs in the City, the Code includes a permit and design review process that requires those seeking to erect a sign to allow City officials to review the sign for readability, clarity and compatibility" and provides for an appeal process. Id. at 1069. The sign ordinance did not provide officials with unbridled discretion:
The Ninth Circuit distinguished the "aesthetic quality of the community" ordinance at issue in City of Moreno, noting that the sign ordinance in G.K. Ltd. required officials to examine whether a sign was "compatible with the surrounding environment," as defined in the ordinance, required the officials to explain their decision, and provided for review of the decision. Id. at 1083-84. "Although the design review criteria are somewhat elastic and require reasonable discretion to be exercised by the permitting authority, this alone does not make the Sign Code an unconstitutional prior restraint." Id. at 1084.
Three other Ninth Circuit cases are particularly helpful in defining when a provision runs afoul of the prohibition on unbridled discretion. First, Desert Outdoor Advertising, Inc. v. City of Oakland, 506 F.3d 798 (9th Cir. 2007), examined a prior restraint claim arising out of a freeway sign ordinance with standards falling between the amorphous health and welfare requirements invalidated in City of Moreno and the "compatible with the surrounding environment" ordinance approved in G.K. Ltd. The Oakland officials were allowed to grant a sign variance if three conditions were met:
506 F.3d at 801.
The Ninth Circuit explained:
Id. at 807.
Second, Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895 (9th Cir. 2007), upheld a billboard ordinance against a First Amendment unbridled discretion challenge. The ordinance instructed the official to "ensure that any sign proposal is in conformance with this Chapter and is consistent with its intent and purpose." Id. at 904. "The city's delineated intent and purpose includes encouraging `a desirable
Third, Epona v. County of Ventura, 876 F.3d 1214 (9th Cir. 2017), also presented a situation between the "abstract standards" invalidated in City of Moreno and the sufficient standards of G.K. Ltd. In Epona, to obtain a permit, an applicant had to prove to the satisfaction of the decision-making authority that seven conditions were satisfied. The proposed use had to be:
Epona, 876 F.3d at 1223-24 (quotation marks, alterations, and citation omitted). Because the ordinance required that each of the seven conditions had to be met, the Ninth Circuit invalidated the ordinance, ruling that, "if one condition confers an impermissible degree of discretion, the specificity of a separate condition will not save the scheme." Id. at 1224.
In the present case, Plaintiffs challenge the "guidelines" for "unusual and reasonable" uses within an agricultural district set forth in subsections 15-15-95(c)(1) to (4). Subsection (5) is not being challenged in this case. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.1 (9th Cir. 2006) (referring to judicial review of "only those portions [of permit ordinances and regulations] that [parties] specifically challenge," and cautioning against viewing a court as "having reviewed or approved aspects of the ordinances or implementing regulations not here challenged").
The guidelines say that a Special Use Permit may be granted upon consideration of matters such as the following:
The Maui Planning Commission believed it could deny Plaintiffs' Special Use Permit application if any one of the "guidelines" was not satisfied. See Depo. of William Spence at 31 (Feb. 5, 2018), ECF No. 215-18, PageID #4649. Plaintiffs have not claimed that nonsatisfaction of more than one guideline was required to deny a permit.
The Maui Planning Commission's belief that section 15-15-95(c) was instructive as to the denial of a permit actually involves an extrapolation from the language of section 15-15-95(c). Section 15-15-95(c) speaks to guidelines for the granting of a Special Use Permit. Plaintiffs appear to agree with this extrapolation. In any event, the court sees no reason to conclude that the invalidation of one of the "guidelines" would necessarily invalidate the whole permitting scheme. As the Ninth Circuit noted in City of Moreno, "[g]enerally, only that part of an ordinance that is constitutionally infirm will be invalidated, leaving the rest intact." 103 F.3d at 821; see also City of Oakland, 506 F.3d at 802 ("we are obligated to interpret a statute, if it is fairly possible, in a manner that renders it constitutionally valid").
The guideline in subsection 15-15-95(c)(3) for determining whether a Special Use Permit should be granted for an "unusual and reasonable" use points to consideration of the proposed use as "not unreasonably burden[ing] public agencies to provide roads and streets, sewers, water drainage and school improvements, and police and fire protection." The required examination of the burden on agencies with respect to "roads and streets, sewers, water drainage and school improvements, and police and fire protection" provides a sufficiently specific, narrow, objective, and definite standard for the Maui Planning Commission to consider. Comparing this standard to those examined in City of Moreno and G.K. Ltd., this court concludes that subsection 15-15-95(c)(3) is much more like the provision in G.K. Ltd., which found no First Amendment violation with respect to a sign ordinance that regulated the type, size, and design of signs—a limited and objective set of criteria going to "form, proportion, scale, color, materials, surface treatment, overall sign size and the size and style of lettering." 436 F.3d at 1083.
In trying to frame its challenge as a facial one, Plaintiffs seek to steer this court away from considering the factual context of this case. The record indicates that the road leading to Plaintiffs' property, Haumana Road, is so narrow in many spots that two cars cannot pass each other unless one pulls off the road. If cars park on the side of the road, emergency vehicles cannot get through. The Maui Police Department recommended that the road be widened if Plaintiffs were going to be allowed to conduct religious activities, including wedding ceremonies, at their property, given the anticipated increase in traffic on the road. With the road as is,
Subsection 15-15-95(c)(3)'s requirement that the Maui Planning Commission examine whether an "unreasonable burden" would be placed on agencies to provide "roads and streets, sewers, water drainage and school improvements, and police and fire protection" is a limit on the Maui Planning Commission's discretion. In Thomas, the Supreme Court noted that the permissive nature of an ordinance furthered, rather than constricted, free speech. Thomas, 534 U.S. at 325, 122 S.Ct. 775. Subsection 15-15-95(c)(3)'s use of the word "unreasonably" similarly furthers free speech. Had subsection 15-15-95(c)(3) only required the Maui Planning Commission to examine whether any burden at all was placed on agencies providing "roads and streets, sewers, water drainage and school improvements, and police and fire protection," the Maui Planning Commission could have ruled on a Special Use Permit application based on even a miniscule burden on those agencies. This would have removed the Maui Planning Commission's discretion to grant an application. As written, subsection 15-15-95(c)(3) allows the granting of a permit when the burden on the items is not "unreasonable." This standard provides the Maui Planning Commission with some, but not unbridled, discretion to grant a permit, thus furthering free speech.
Trewhella v. City of Lake Geneva, Wisconsin, 249 F.Supp.2d 1057 (E.D. Wis. 2003), is instructive on this point. Trewhella examined a challenge to supposedly "unfettered power to deny a permit" unless the permit granter found that "The parade or public assembly is scheduled to move from its point of origin to its point of termination expeditiously and without unreasonable delays in route." Id. at 1076. Trewhella argued that "delays in route" gave the permit granters unbridled discretion to grant or deny a permit. Id. The district court disagreed, ruling that "delays in route" was modified by the word "unreasonable," which limited the permit granter's discretion. As in Trewhella, the use of "unreasonable" in subsection 15-15-95(c)(3) places a limit on the Maui Planning Commission's exercise of discretion.
Section 15-15-95(c)(3)'s "unreasonable burden" language is distinguishable from the "without unreasonable delay" language invalidated in United States v. Frandsen, 212 F.3d 1231, 1240 (11th Cir. 2000). In Frandsen, a superintendent was required to issue a permit "without unreasonable delay." Id. The Eleventh Circuit stated that "without unreasonable delay" did not put a real time limit on the decision maker, noting:
Id. Subsection 15-15-95(c)(3)'s "unreasonable burden" language does not allow the same potential abuse by the Maui Planning Commission. The language is more akin to that in Trewhella in that it actually places a limit on the Planning Commission's exercise of discretion and furthers free speech by allowing the issuance of a Special Use Permit when it would not "unreasonably" burden certain objective items.
Plaintiffs also contend that subsection 15-15-95(c)(2) is facially invalid. That provision includes a guideline for granting a Special Use Permit going to whether the proposed use would not adversely affect surrounding property. Assuming that Plaintiffs may bring a facial challenge to this guideline notwithstanding its express focus on guidelines for the granting of a Special Use Permit, this court recognizes that this subsection presents a closer call than subsection 15-15-95(c)(3) as to whether the challenged language vests the Maui Planning Commission with unbridled discretion. But even if subsection 15-15-95(c)(2) does run afoul of the First Amendment (something this court is expressly not ruling on), that would not give Plaintiffs an entitlement to receive the requested permit because subsection 15-15-95(c)(3) would still present an impediment to such a grant. Get Outdoors II is instructive here.
Get Outdoors II noted that "an unfavorable decision on the merits of one claim may well defeat standing on another claim if it defeats the plaintiff's ability to seek redress." 506 F.3d at 893. In this case, assuming the Special Use Permit application could have been denied based on any one of the guidelines in section 15-15-95(c), a judicial invalidation of subsection 15-15-95(c)(2) would not address the constitutionality of any other subsection. Given that circumstance, this court sees no need to address the constitutionality of subsection 15-15-95(c)(2).
This court has carefully examined the decision of the Maui Planning Commission and the appeal of its decision. The Maui Planning Commission's Conclusions of Law state:
ECF No. 185-9, PageID #3290 (emphasis added).
In concluding that the proposed uses would adversely affect surrounding properties in conflict with subsection 15-15-95(c)(2), the Commission appears to have been focused on how the proposed uses would increase traffic and pose a safety hazard without road mitigation. These concerns caused the Commission to determine that the proposed uses would burden public agencies providing roads and streets, police, and fire protection in conflict with subsection 15-15-95(c)(3). See ECF No. 185-9, PageID #3290. The Commission concluded that the proposed uses "did not constitute an `unusual and reasonable' use in the Agricultural district." Id. It is not at all clear that the Commission's reliance on subsection 15-15-95(c)(2) was anything more than a reiteration of its concerns under subsection 15-15-95(c)(3). That is, this court cannot conclude from the record that subsection 15-15-95(c)(2) was a necessary component of the denial such that, without subsection 15-15-95(c)(2), the Commission would have granted the permit.
In any event, as Get Outdoors II notes, to comport with the required "constitutional standing" principles, Plaintiffs must have had a possibility of getting a permit for the asking. See 506 F.3d at 895. If Plaintiffs could be denied a permit under subsection 15-15-95(c)(3), the court questions their standing to challenge subsection 15-15-95(c)(2), as any ruling favorable to them on subsection 15-15-95(c)(2) would not redress any injury they suffered. See Get Outdoors II, 506 F.3d at 895 (discussing the need for a plaintiff to have been eligible to get a permit "for the asking" to challenge an allegedly unconstitutional provision).
In Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985), the Supreme Court noted that "a federal court should not extend its invalidation of a statute [or ordinance] further than necessary to dispose of the case before it." Brockett, examining whether partial invalidation of a statute was appropriate, noted that a "statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left intact." 472 U.S. at 504, 105 S.Ct. 2794. This court is performing the corollary task of determining whether provisions are valid. The parties have not explained why, if even one of the provisions relied on by the Commission is valid, this court must analyze whether other provisions are unconstitutional even if invalidation of those other provisions would not entitle Plaintiffs to the requested permit. That is, absent evidence that the Commission deemed subsection 15-15-95(c)(2) as necessary to its denial (as opposed to, for example, just an additional ground for reiterating concerns raised under subsection 15-15-95(c)(3)), this court does not rule on the purported facial challenge to subsection 15-15-95(c)(2).
The State of Hawaii seeks summary judgment with respect to whether the remaining
For the reasons set forth above, the court grants the State of Hawaii's motion for summary judgment and the County of Maui's joinder therein and denies Plaintiffs' counter motion for summary judgment. That is, the court grants summary judgment in favor of Defendants with respect to the prior restraint claim asserted in Count V. With respect to the remaining counts, only factual challenges remain. The State of Hawaii is, of course, free to limit its intervention to defending against facial challenges only.
IT IS SO ORDERED.
