Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-23-1999

Whiteland Woods, L.P. v. Twp. of W. Whiteland
Precedential or Non-Precedential:

Docket 97-1944




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Filed September 23, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1944

WHITELAND WOODS, L.P.,
       Appellant

v.

TOWNSHIP OF WEST WHITELAND;
WEST WHITELAND BOARD OF SUPERVISORS;
WEST WHITELAND PLANNING COMMISSION;
DIANE S. SNYDER; JERRY POLETTO;
JACK C. NEWELL; KATHI HOLAHAN;
NANCY CARVILLE; CARL DUSINBERRE

v.

JOHN D. SNYDER

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 96-cv-08086
(Honorable Norma L. Shapiro)

Argued June 5, 1998
Before: SCIRICA, NYGAARD and SEITZ,*
Circuit Judges

Reargued December 4, 1998
Before: SCIRICA, NYGAARD and ROSENN, Circuit Judges

(Filed: September 23, 1999)



_________________________________________________________________

*The Honorable Collins J. Seitz was a member of the original panel but
died before the matter was decided.
       THOMAS A. RILEY, JR., ESQUIRE
        (ARGUED 6/5/98 and 12/4/98)
       Riley, Riper, Hollin & Colagreco
       240 Daylesford Plaza
       P.O. Box 568
       Paoli, Pennsylvania 19301

        Attorney for Appellant

       THOMAS X. McANDREW, JR.,
        ESQUIRE
       Siana & Vaughan
       961 Pottstown Pike
       P.O. Box 630
       Exton, Pennsylvania 19341

       JEFFREY R. BALDYGA, ESQUIRE
        (ARGUED 6/5/98)**
       Siana, Shields & Vaughan
       961 Pottstown Pike
       P.O. Box 630
       Exton, Pennsylvania 19341

        Attorneys for Appellees,
        Township of West Whiteland;
        West Whiteland Board of
        Supervisors; West Whiteland
        Planning Commission; Diane S.
        Snyder; Jerry Poletto; Jack C.
        Newell; Kathi Holahan; Nancy
        Carville; Carl Dusinberre
_________________________________________________________________

**Jeffrey R. Baldyga, Esquire, subsequently withdrew his appearance on
behalf of Appellees, Township of West Whiteland, et al.


                                 2
       GEOFFREY C. JARVIS, ESQUIRE
        (ARGUED 12/4/98)
       RICHARD A. SPRAGUE, ESQUIRE
       Sprague & Sprague
       Wellington Building, Suite 400
       135 South 19th Street
       Philadelphia, Pennsylvania 19103

       GUY A. DONATELLI, ESQUIRE
       Lamb, Windle & McErlane
       24 East Market Street
       P.O. Box 565
       West Chester, Pennsylvania 19381-
        0565

        Attorneys for Appellee,
        John D. Snyder

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this civil rights action, real estate developer Whiteland
Woods, L.P., a subsidiary of Toll Brothers, asserts that its
First and Fourteenth Amendment rights were violated by a
township's refusal to allow videotaping of a meeting of the
Township Planning Commission. In a parallel state court
action, the township acknowledged that Pennsylvania's
Sunshine Act, 65 Pa. Stat. Ann. SS 271-86 (West Supp.
1998), requires the township to allow videotaping of
Planning Commission proceedings and agreed not to
enforce the ban at future meetings. Whiteland Woods then
filed this lawsuit under 42 U.S.C.A. S 1983 (West 1994)
seeking monetary damages and attorney's fees. The District
Court granted defendants' motion for summary judgment.
We will affirm.

I

On June 24, 1996, Whiteland Woods filed a tentative
application with West Whiteland Township, Chester
County, to build a residential community on a 162.5-acre

                                  3
parcel in the township. The application was placed on the
agenda for the September 25, 1996 meeting of the West
Whiteland Planning Commission.

At the September 25 meeting, attorney Thomas A. Riley
presented Whiteland Woods' application to the Planning
Commission. Whiteland Woods had arranged for a video
camera operator to attend the meeting and record the
proceedings. Apparently in response to this videotaping,
Township Solicitor John D. Snyder stated early in the
meeting that he intended to discuss rules governing
videotaping, but that any changes to the rules would apply
only to future meetings. During the meeting, Snyder
prepared a resolution barring the use of all video cameras
at future Planning Commission meetings. The resolution
provided in part: "The following rules shall govern the use
of mechanical/electrical recording and/or stenographic
devices during public meetings: . . . (5) No video taping or
video recording and no additional lighting shall be
employed."

Jack Newell, president of the Planning Commission,
placed Snyder's resolution on the agenda and Snyder
presented it at the end of the meeting. Members of the
Planning Commission discussed the proposed resolution,
with participation by Riley and Michael Greenberg, vice
president of Toll Brothers. Newell explained that he believed
videotaping would inhibit candid discussion by township
residents. Other members of the Planning Commission
expressed resentment at being videotaped and stated that
videotaping could be intimidating. Greenberg, on the other
hand, said he wanted a video record of all proceedings and
Riley informed the Commission that he believed allowing
videotaping was required by Pennsylvania's Sunshine Act.
Nevertheless, the Planning Commission adopted the
resolution banning videotaping by a vote of four to two. The
Planning Commission did not prevent Whiteland Woods
from videotaping the September 25 meeting.

On October 4, 1996, counsel for Whiteland Woods sent
the Planning Commission written notification of Whiteland
Woods' intention to videotape a meeting scheduled for
October 9, 1996. On October 8, 1996, Snyder wrote
informing Whiteland Woods that the Township would not

                               4
permit videotaping and stating, "Under the circumstances,
if you decide to undertake the effort and expense of
bringing video cameras and videotaping equipment to the
meeting you must do so at your own risk . . . ." The same
day, the township's Board of Supervisors, following the lead
of the Planning Commission, enacted Resolution 96-10
banning the use of video recording devices at meetings of
the Board of Supervisors. Resolution 96-10 provided in
part: "The following regulations shall govern the use of
electrical/mechanical recording equipment during public
meetings of the Board: . . . (c) Only audio recording or
stenographic recording equipment may be used i.e. no video
recording equipment shall be permitted . . . ."

Representatives of Whiteland Woods brought video
recording equipment to the Planning Commission's October
9, 1996 meeting, but Officer John Curran of the West
Whiteland Township Police Department informed Whiteland
Woods' representatives they could not make a video
recording of the meeting. Accordingly, Whiteland Woods left
the camera facing the wall and made no videotape of the
meeting.

On October 14, 1996, Whiteland Woods filed suit in the
Court of Common Pleas of Chester County, seeking
injunctive relief and relief under the Pennsylvania
Declaratory Judgments Act, 42 Pa. Cons. Stat. Ann.
S 7531-41 (West 1998), for violating the Sunshine Act, 65
Pa. Stat. Ann. S 271-86. Whiteland Woods also sought a
preliminary injunction barring the Township from enforcing
the two resolutions. On October 16, 1996, the Township,
through counsel, wrote to the Court of Common Pleas
conceding the Township could not enforce either resolution,
citing Hain v. Board of Sch. Directors, 

, 663-64
(Pa. Commw. Ct. 1994) (holding that the Sunshine Act
requires Pennsylvania government agencies to permit
videotaping of their meetings). The Township defendants
waived their right to a hearing on the preliminary
injunction and the Court of Common Pleas on October 17
enjoined the Township from enforcing or attempting to
enforce the two resolutions or any other resolutions
prohibiting the videotaping of public meetings. The Board of
Supervisors and Planning Commission complied with the

                               5
injunction and did not try to enforce the resolutions. In
fact, Whiteland Woods has videotaped every Board of
Supervisors meeting since October 22, 1996.

Whiteland Woods then sought additional relief, filing a
suit in the Court of Common Pleas for Chester County on
November 13, 1996 for alleged violations of the First and
Fourteenth Amendments under 42 U.S.C.A. S 1983 (West
1994), the Pennsylvania Constitution, and Pennsylvania's
Sunshine Act. The complaint sought damages in excess of
$2,100,000 and attorney's fees.1 The Township removed the
case to federal court and filed a third-party complaint
against Snyder, alleging that he advised the Commission
that it legally could adopt the resolution barring
videotaping. The Planning Commission rescinded its
resolution on December 11, 1996; the Board of Supervisors
rescinded Resolution 96-10 on December 18, 1996.

The District Court granted summary judgment on behalf
of the Township defendants on the S 1983 claims. The court
held the ban was not a violation of the First Amendment
because it was a reasonable time, place, and manner
restriction and dismissed the Fourteenth Amendment claim
because the Township's conduct did not constitute a
substantive due process violation. The court also
determined that plaintiff 's request for injunctive relief was
moot. After disposing of the federal claims, the District
Court declined to exercise supplemental jurisdiction over
plaintiff 's state law claims or the Township's claim against
Snyder. See Whiteland Woods v. Township of West
Whiteland, No. 96-CV-8086, 

, at *4-*8
(E.D. Pa. Oct. 21, 1997).

II

The District Court had federal question jurisdiction under
28 U.S.C. S 1331. We have jurisdiction under 28 U.S.C.
S 1291. We exercise plenary review of a grant of summary
_________________________________________________________________

1. Initially, Whiteland Woods also sought relief based on the failure of
the
Board of Supervisors and Planning Commission to rescind promptly the
unenforceable resolutions. The District Court rejected that theory and
Whiteland Woods does not press it on appeal.

                               6
judgment. See Wicker v. Consolidated Rail Corp. , 

, 696 (3d Cir. 1998). We view all evidence and draw all
inferences therefrom in the light most favorable to the non-
moving party and grant summary judgment if no
reasonable jury could find for the non-moving party. See
Sameric Corp v. City of Philadelphia, 

, 590 (3d
Cir. 1998).

III

A

The primary issue on appeal is whether there is a federal
constitutional right to videotape public meetings of a
township planning commission when other effective means
of recording the proceedings are available. "It is now well
established that the Constitution protects the right to
receive information and ideas." Stanley v. Georgia, 

, 564 (1969). Because a "major purpose of[the First]
Amendment was to protect the free discussion of
governmental affairs," Globe Newspaper v. Superior Ct., 

, 604 (1982) (internal quotation marks omitted),
the public and press have the right to attend certain types
of governmental proceedings. See, e.g., 

(criminal
trials); Publicker Indus., Inc. v. Cohen, 

,
1067-1070 (3d Cir. 1984) (civil trials).

We have no hesitation in holding Whiteland Woods had a
constitutional right of access to the Planning Commission
meeting on October 9, 1996. Whether the public has a First
Amendment right of access to a particular government
proceeding depends on "two complementary
considerations." Capital Cities Media, Inc. v. Chester, 

, 1174 (3d Cir. 1986). First, "because a tradition
of accessibility implies the favorable judgment of
experience," we must consider "whether the place and
process has historically been open to the press and general
public." 

Co. v. Superior Court,

, 8 (1986)) (internal quotation marks omitted).
Second, we evaluate "whether public access plays a
significant positive role in the functioning of the particular
process in question." 

context of judicial

                               7
proceedings, we have identified six factors pertinent to the
application of the second prong:

       [1] promotion of informed discussion of governmental
       affairs by providing the public with the more complete
       understanding of the judicial system; [2] promotion of
       the public perception of fairness which can be achieved
       only by permitting full public view of the proceedings;
       [3] providing a significant community therapeutic value
       as an outlet for community concern, hostility and
       emotion; [4] serving as a check on corrupt practices by
       exposing the judicial process to public scrutiny;[5]
       enhancement of the performance of all involved; and[6]
       discouragement of perjury."

United States v. Simone, 

, 839 (3d Cir. 1993)
(bracketed numbers in original).

Public access to Township Planning Commission
Meetings is guaranteed by the Pennsylvania Municipalities
Planning Code of 1968 S 209(10), 53 Pa. Stat. Ann.
S 10209(10) (West 1998), and by the Sunshine Act of 1986,
53 Pa. Stat. Ann. SS 271-86, see Moore v. Township of
Raccoon, 

, 740 (Pa. Commw. Ct. 1993).
Although the Planning Commission serves in an advisory
capacity only, see Heck v. Zoning Hearing Bd. , 

,
19 (Pa. Commw. Ct. 1979), "[t]he General Assembly . . .
intended that planning commissions play an active role in
all aspects of municipal development and land use." 

. Public access to the Commission's
meetings complies with the standards set forth in Capital
Cities and advances the interests identified in Simone.
Public awareness of land use matters and the perception of
fairness are fostered by the presence of affected members of
the township at Commission meetings. Participants in these
meetings, whether members of the Commission or
witnesses providing testimony, are put on notice that their
actions will be evaluated by the community. Consequently,
we believe the Planning Commission meetings are precisely
the type of public proceeding to which the First Amendment
guarantees a public right of access.

But the public's right of access is not absolute. In holding
that a criminal trial may not be completely closed to the
public, the Supreme Court emphasized,

                               8
         [O]ur holding today does not mean that the First
         Amendment rights of the public and representatives of
         the press are absolute. Just as a government may
         impose reasonable time, place, and manner restrictions
         upon the use of its streets in the interest of such
         objectives as the free flow of traffic, so may a trial
         judge, in the interest of the fair administration of
         justice, impose reasonable limitations on access to a
         trial. "[T]he question in a particular case is whether
         that control is exerted so as not to deny or
         unwarrantedly abridge . . . the opportunities for the
         communication of thought and the discussion of public
         questions immemorially associated with resort to
         public places."

Richmond Newspapers, Inc. v. Virginia, 

, 581
n.18 (1980) (plurality opinion) (quoting Cox v. New
Hampshire, 

, 574 (1941)) (citations omitted);
see also 

(Brennan, J., concurring); Globe

n.17. The Supreme Court also
found no constitutional violation in the denial of a press
request for access to county jail facilities for the purpose of
investigating conditions in the jail, noting it had"never
intimated a First Amendment guarantee of a right of access
to all sources of information within government control"
and that the "undoubted right to gather news . . . affords
no basis for the claim that the First Amendment compels
others--private persons or governments--to supply
information." Houchins v. KQED, Inc., 

, 9, 11
(1978) (plurality opinion). Thus, the First Amendment does
not require unfettered access to government information.

The District Court analyzed Whiteland Woods' First
Amendment claim under the traditional public forum
doctrine.2 See Whiteland Woods, 

, at *6.
_________________________________________________________________

2. The government's ability to restrict speech is limited in speech fora.

         The Court has identified three types of fora: the traditional
public
       forum, the public forum created by government designation, and the
       nonpublic forum. Traditional public fora are defined by the
objective
       characteristics of the property, such as whether, by long tradition
or
       by government fiat, the property has been devoted to assembly and
       debate. . . .

                                 9
The Court of Appeals for the Eleventh Circuit has also
analyzed prohibitions on recordings of public proceedings
under standards similar to those applied to time, place, and
manner restrictions on speech in a public forum. See
Blackston v. Alabama, 

, 120 (11th Cir. 1994)
(per curiam) (denying summary judgment to defendants for
prohibiting audio recording of the Alabama Supreme Court
Advisory Committee on Child Support Guidelines because
plaintiffs alleged a non-content-neutral prohibition); United
States v. Hastings, 

, 1282 (11th Cir. 1983)
(upholding prohibition on videotaping, photographing, and
radio broadcasting in the courtroom). In contrast, the
_________________________________________________________________

        Designated public fora, in contrast, are created by purposeful
       governmental action. The government does not create a designated
       public forum by inaction or by permitting limited discourse, but
only
       by intentionally opening a nontraditional public forum for public
       discourse. . . .

        Other government properties are either nonpublic fora or not fora
       at all.

Arkansas Educ. Television Comm'n v. Forbes, 

, 677 (1998)
(citations, internal quotation marks, and alterations omitted). Time,
place, and manner restrictions on speech in a public forum are
permissible "provided [1] the restrictions are justified without reference
to the content of the regulated speech, [2] that they are narrowly
tailored
to serve a significant governmental interest, and[3] that they leave open
ample alternative channels for communication of the information." Ward
v. Rock Against Racism, 

, 791 (1989) (internal quotation
marks omitted). Restrictions on speech in a non-public forum must be
reasonable and content-neutral. See Arkansas Educ. Television 

.

In addition, the Supreme Court has discussed "limited" public fora,
which are designated for expression, but only on limited topics. See,
e.g.,
Rosenberger v. Rector and Visitors of Univ., 

, 829 (1995).
Although there is some uncertainty whether limited public fora are a
subset of designated public fora or a type of nonpublic fora, see
Summum v. Callaghan, 

, 914-15 (10th Cir. 1997)
(discussing cases), we have generally applied to limited public fora the
constitutional requirements applicable to designated public fora. See
Christ's Bride Ministries, Inc. v. Southeastern Pa. Transp. Auth., 

, 248-55 (3d Cir. 1998).

                               10
Courts of Appeals for the Seventh and Second Circuits have
required only that restrictions on videotaping or
audiotaping be content-neutral and reasonable, the
standards applied to speech in a nonpublic forum. See
United States v. Kerley, 

, 620-21 (7th Cir.
1985) (upholding exclusion of television cameras from
criminal trial); United States v. Yonkers Bd. of Educ., 

, 114 (2d Cir. 1984) (upholding ban on audiotape
recording of civil trial).

We are not convinced that forum analysis is necessary to
resolve such restrictions on the right of access.
Traditionally, the speech forum doctrine applies to
"expressive" or "speech" activity. See Perry Educ. Ass'n v.
Local Educators Ass'n, 

, 45 (1983) (discussing
a public forum as a place for "expressive activity"); Brody v.
Spang, 

, 1117 (3d Cir. 1992) ("The Supreme
Court has adopted a framework of forum analysis to assess
whether a government entity must permit speech or
expressive activity on its property."). Whiteland Woods does
not allege the Township interfered with its speech or other
expressive activity. Rather, the alleged constitutional
violation consisted of a restriction on Whiteland Woods'
right to receive and record information. In a similar context,
the Court of Appeals for the Second Circuit found forum
analysis inapplicable to CNN's attempt to televise a libel
trial:

       [I]t has never been suggested that there is a link
       between the First Amendment interest that a litigant
       has in his trial as a "form of expression" and the right
       that the public may have to view that expression on
       television. Whatever public forum interest may exist in
       litigation, that interest is clearly a speaker's interest,
       not an interest in access to the courtroom. Because the
       ability of neither General Westmoreland nor CBS to
       express views at trial is altered by the presence or
       absence of television cameras, CNN's public forum
       argument is, by itself, inapposite.

Westmoreland v. Columbia Broadcasting Sys., Inc. , 

, 21-22 (2d Cir. 1984). Westmoreland was decided three
days after Yonkers Board of Education, which, as noted,
evaluated a ban on audio recording using criteria similar to

                               11
those governing restrictions on expressive speech in a
nonpublic forum. 

(upholding the ban
because it was content-neutral and reasonable). Although
the two panels applied somewhat different tests to the
similar questions before them, their analyses are
consistent. The critical question regarding a content-neutral
restriction on the time, place, or manner of access to a
government proceeding is whether the restriction
meaningfully interferes with the public's ability to inform
itself of the proceeding: that is, whether it limits the
underlying right of access rather than regulating the
manner in which that access occurs.

In this case, Whiteland Woods' right of access to the
October 9 Planning Commission meeting was not
meaningfully restricted by the ban on videotaping. The
Township did not curtail Whiteland Woods' ability to
express its views before the Planning Commission or to
compile an accurate record of the proceedings. Nor did it
prohibit interested parties, reporters, or members of the
public from attending the meetings or limit the gathering of
information by means other than by videotaping. Spectators
were free to take notes, use audio recording devices, or
even employ stenographic recording. Nothing in the record
suggests videotaping would have provided a uniquely
valuable source of information about Planning Commission
meetings. The First Amendment does not require states to
accommodate every potential method of recording its
proceedings, particularly where the public is granted
alternative means of compiling a comprehensive record. See
Combined Communications Corp. v. Finesilver, 

, 821 (10th Cir. 1982) (upholding ban on television
coverage of court-ordered negotiations over electoral
redistricting where members of the press were permitted to
attend the meetings and take notes); Garrette v. Estelle, 

, 1279 (5th Cir. 1977) (upholding prison's
prohibition on filming execution because there were other
methods of informing the public of the execution); Johnson
v. Adams, 

, 1564-65 (E.D. Tex. 1986)
(holding county commissioners may ban video recording of
meetings where audiotaping was permitted). To put it
another way, plaintiff has failed to demonstrate an essential
nexus between the right of access and a right to videotape

                               12
the Planning Commission proceedings. See 

("There is a long leap . . . between a public
right under the First Amendment to attend trials and a
public right under the First Amendment to see a given trial
televised."). Accordingly, we believe Whiteland Woods has
failed to demonstrate any deprivation of its First
Amendment rights.

Whiteland Woods relies primarily on Cable News
Network, Inc. v. American Broadcasting Companies, Inc.,

(N.D. Ga. 1981), in which the court
considered restrictions on the press coverage of presidential
activities. When only limited numbers of media
representatives could be admitted to a given event, the
Reagan administration admitted a media "pool" including a
single television camera crew, which shared its feed with
others seeking to cover the event. Traditionally, the pool
representative had rotated among the three established
television networks: ABC, CBS, and NBC. When CNN
sought to be included in the rotation, the administration
announced that television representatives would be banned
from pooled coverage unless the four networks agreed
among themselves to a pool rotation system. In striking
down this restriction, the court found that television
coverage of these events had traditionally been permitted,
that such coverage provided information qualitatively
different from that available through print media, and that
the administration's motive was to avoid designating
members of the pool rather than terminate press coverage.
See 

Because none of these factors is present
here, we believe Cable News Network is inapposite.3

We conclude that Whiteland Woods' right of access to
Planning Commission meetings did not create a federal
constitutional right to videotape the meetings. Whiteland
Woods was allowed to attend all the meetings of the
Planning Commission, including the October 9 session, and
_________________________________________________________________

3. Whiteland Woods also cites Maurice River Township Bd. of Educ. v.
Maurice River Township Teachers Ass'n, 

(N.J. Super. Ct.
Ch. Div. 1982) (holding that the public had the right to videotape school
board meetings). But that decision was based on New Jersey common
law, not the First Amendment. See 

                               13
to compile a full record of the proceedings, whether by
written and stenographic notes or audiotaping. Therefore,
we believe the restriction on videotaping did not violate the
First Amendment.

B

Whiteland Woods also claims the Township violated its
Fourteenth Amendment substantive due process rights
when Officer Curran informed its representatives they could
not videotape the October 9, 1996 meeting. Whiteland
Woods does not base its claim on an alleged infringement
of its fundamental rights under the First Amendment but
instead on "what is arguably the most frightening and
egregious abuse of governmental power which is the illegal
deprivation of liberty by a municipal government through
the raw use of its police force." (Appellant's Br. at 26.)

We have recently reviewed the substantive limitations
imposed by the due process clause on executive action
such as police conduct:

       "The touchstone of due process is the protection of the
       individual against arbitrary action of government." . . .
       [W]here abusive action by a member of the executive
       branch is alleged, "only the most egregious official
       conduct can be said to be arbitrary in the
       constitutional sense." To generate liability, executive
       action must be so ill-conceived or malicious that it
       "shocks the conscience."

Miller v. City of Philadelphia, 

, 374-75 (3d Cir.
1999) (quoting Wolff v. McDonnell, 

(1974);
County of Sacramento v. Lewis, 

, 846 (1998)
(citation and internal quotation marks omitted)). The
District Court found that this standard had not been met:
"The police officer was requiring compliance with a duly-
enacted resolution the Planning Commission believed was
in the best interest of the public . . . . [A] police officer's
verbal instruction to comply with the law does not, without
more, amount to `arbitrary action of government.' "
Whiteland Woods, 

, at *7 (quoting 

). We agree. In requiring compliance with
the resolution, Officer Curran was acting in a rational

                               14
manner. Contending that violation of the resolution was not
a criminal offense, Whiteland Woods suggests that if the
Township thought plaintiff's actions were illegal, "the
appropriate thing to do would have been to seek redress
through the Court--not through enforcement by an armed
policeman." Plaintiff cites no authority for this position, nor
does it explain how Curran's conduct rises to the level of a
substantive due process violation.

IV

For the foregoing reasons, we will affirm the grant of
summary judgment.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15