USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1127
ACKERLEY COMMUNICATIONS OF MASSACHUSETTS, INC.,
Plaintiff, Appellant,
v.
CITY OF CAMBRIDGE AND ROBERT BERSANI, ETC.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Godbold* and Cyr, Senior Circuit Judges.
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Charles Rothfeld, with whom Andrew L. Frey, Kenneth S.
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Geller, Mayer, Brown & Platt, George A. Berman, Joseph S. Berman,
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Posternak, Blankstein & Lund, Eric M. Rubin, Walter E. Diercks
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and Rubin, Winston, Diercks, Harris & Cooke were on brief for
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appellant.
Peter L. Koff, with whom McGowan, Engel, Tucker, Garrett &
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Schultz, P.A., Arthur J. Goldberg and City of Cambridge Law
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Department were on brief for appellees.
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February 5, 1998
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*Of the Eleventh Circuit, sitting by designation.
CYR, Senior Circuit Judge. In an earlier opinion we
CYR, Senior Circuit Judge.
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held that the City of Cambridge had violated the First Amendment
rights of Ackerley Communications of Massachusetts, Inc., by
requiring it to remove various signs which failed to conform with
a recently enacted zoning provision aimed at controlling the
proliferation of aesthetically offensive signage. Ackerley
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Communications of Mass., Inc. v. City of Cambridge, 88 F.3d 33
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(1st Cir. 1996) ("Ackerley I"). Ackerley now appeals from the
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judgment entered following our remand, claiming that the district
court erred by refusing to void the offending zoning provision in
its entirety. We vacate the district court judgment and remand
with directions to enter judgment for Ackerley.
I
I
BACKGROUND
BACKGROUND
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Ackerley owns forty-six large advertising signs or
billboards, located throughout Cambridge, which carry "off-site"
messages, by which we mean signs whose content relates to no
commercial or noncommercial activity occurring at the premises
where the sign is located.1 The City amended its ordinance in
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1We cannot improve upon an earlier explication of the off-
site/on-site distinction:
An onsite sign carries a message that
bears some relationship to the activities
conducted on the premises where the sign is
located. For example, an onsite sign may
simply identify a business or agency ("Joe's
Hardware" or "YMCA"), or it may advertise a
product or service available at that location
("Budweiser Beer" at Parise's Cafe or child
care at the Lutheran Church). Depending upon
the business or agency, the message on the
2
1991 to require removal of all signs meeting certain objective
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criteria relating to dimension and location. See Cambridge,
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Mass., Ordinance 1123, 7.18.1 (June 10, 1991).
Under the amended criteria, all forty-six Ackerley
signs carrying off-site messages were to be removed, since the
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ordinance contained no "grandfather" provision. The relevant
legal environment is further complicated by the Massachusetts
Zoning Enabling Act ("MZEA"), however, which prohibits any
municipal zoning ordinance provision purporting to regulate
existing on-site signage; that is, any sign carrying a message
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relating to a commercial or noncommercial activity occurring at
the premises where the sign is located. See Mass. Gen. Laws Ann.
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ch. 40A, 6 (1995).
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sign may be deemed either commercial or non-
commercial. An offsite sign--the category
into which most billboards fit--carries a
message unrelated to its particular location.
These signs also may display either commer-
cial or noncommercial messages. For example,
an offsite sign may advertise "Great Gifts at
Kappy's Liquors," with Kappy's Liquors being
located at some distance from the sign, or it
may say "No one should be left out in the
cold. Write: Citizens Energy Corp." Thus,
the onsite/offsite distinction is not a dis-
tinction between signs attached to buildings
and free standing signs. An offsite sign may
be located on a building rooftop, but because
the product, good, or service it advertises
is not available at the sign's location, it
is classified as offsite. For example, if a
sign advertising the products available at
Joe's Hardware is located atop the Parise
Cafe building, Joe's sign is offsite.
Ackerley Communications of Mass., Inc. v. City of Somerville, 878
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F.2d 513, 513 n.1 (1st Cir. 1989) (Coffin, J.).
3
4
The City Council which enacted section 7.18.1 under-
stood from the start that its effort to curb visual blight would
be thwarted, at least in part, by the MZEA. Be that as it might,
the City Council considered off-site signs, such as Ackerley's,
the greater aesthetic intrusion, see Ordinance 7.11.1(F), in
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the sense that on-site signs at least serve a significant practi-
cal purpose by assisting consumers to locate a particular busi-
ness establishment or product ("Joe's Hardware"), see id.
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7.11.1(G). Accordingly, and since as a general matter the First
Amendment does not prefer commercial speech over noncommercial
(e.g., political) speech, the Ordinance included a "substitution"
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provision permitting the owner of a "grandfathered" on-site sign
to substitute a noncommercial message for the commercial message
previously displayed by its on-site sign (e.g., "Smith for Mayor"
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replaces "Joe's Hardware"). See id. 7.17. Finally, it includ-
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ed a "severability" clause saving all "parts" of the Ordinance
not specifically held invalid. See id. 7.30.
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Until the Ordinance was amended, most off-site signs
owned by Ackerley carried commercial messages, such as advertise-
ments and promotions concerning "for-profit" business ventures.
Following its amendment, however, Ackerley's signs have carried
only noncommercial messages, such as election advertisements and
public service announcements. Ultimately, since the MZEA "grand-
father" provision does not cover existing off-site signs, the
City directed Ackerley to remove all its signs based on their
nonconforming physical characteristics, see Ordinance 7.18.1.
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5
Ackerley responded by filing the present action in
federal district court, seeking a judicial declaration that the
Ordinance on its face and as applied infringed its First
Amendment right to free speech. At the same time, Ackerley
demanded injunctive relief from the City order directing it to
dismantle its signs.
On appeal we vacated the provisional district court
ruling declaring Ordinance 7.18.1 constitutional. Ackerley I,
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88 F.3d at 40. First, we held that the Ordinance and the MZEA,
operating in tandem, distinguished between two types of noncom-
mercial speech on-site and off-site (i) by permitting
nonprofit institutions to display on-site, noncommercial messages
on nonconforming signs located on their own premises, and (ii) by
allowing on-site sign owners to convert from commercial to
noncommercial messages, while denying off-site sign owners either
option. We noted that noncommercial speech for example,
political discourse is accorded the highest level of First
Amendment protection, yet the distinction adopted by the Ordi-
nance though predicated on no aesthetic difference in sign
appearance (e.g., size) plainly imposed unconstitutional
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restrictions upon the off-site noncommercial speech of the sign
owner, by countenancing only those political messages espoused by
the owner or occupant of the site where the sign is located,
while excluding other political views, such as those held by non-
landowners. Thus, we concluded, even though the City might ban
all noncommercial messages from aesthetically intrusive signs, it
6
cannot prefer one particular category of political speaker over
another. Id. at 37-38.2
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Furthermore, because the Ordinance and the MZEA, in
tandem, either allowed or denied "grandfathering" protection
based on whether the sign carried an on-site or an off-site
message on the date the Ordinance was enacted, we concluded that
the City had chilled present speech impermissibly by relying on
message content to reward on-site speakers for their past speech,
while penalizing off-site speakers for their past speech. Id.
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at 38-39 (citing Ackerley Communications of Mass., Inc. v. City
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of Somerville, 878 F.2d 513, 519 (1st Cir. 1989)).
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In a separate discussion captioned "Remedial Option,"
we went on to note that the City could not correct these uncon-
stitutional effects unilaterally simply by eliminating the
"grandfathering" distinction between on-site and off-site signs.
See id. at 39-40. Instead, since it was the Commonwealth,
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through the MZEA, rather than the City through Ordinance
7.18.1, which established the distinction between on-site and
off-site signs, we stated that "[r]elief . . . is beyond the
scope of this court's power in this case[,]" id. at 39, since
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amendments to the MZEA "must be left to the workings of the
political process." Id. Accordingly, we concluded:
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The Cambridge ordinance contains a severabil-
ity provision stating that, in the event some
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2Our reliance on these grounds avoided any need to consider
whether the MZEA "grandfathering" distinction between on-site and
off-site signs amounted to a "content-based" speech restriction
subject to strict-scrutiny review. See id. at 37 & n.7.
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7
portion of it is declared invalid, it is the
City's intent that the remainder of the ordi-
nance continue in full force and effect. We
do not in this decision rule unlawful any
particular section of the ordinance. Rather,
because the constitutional problem stems from
the interplay of the ordinance and the state
provision, we hold only that Cambridge may
not require removal of signs displaying non-
commercial messages based on their exclusion
from exemption under the state provision.
Reversed and Remanded.
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Id. at 40.
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On remand, Ackerley requested a judicial declaration
determining section 7.18.1 invalid in its entirety, which would
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mean that the City could not order the removal of any off-site
sign, whether it carried a noncommercial message, as did
Ackerley's, or a commercial message. The City responded that
Ackerley I conclusively ruled out any such wholesale rescission
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of Ordinance 7.18.1. See id. ("We do not in this decision rule
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unlawful any particular section of the ordinance."). The dis-
trict court ultimately granted Ackerley declaratory relief
"consistent with the decision [in Ackerley I]" and enjoined the
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City from requiring Ackerley to remove signs displaying noncom-
mercial messages.
II
II
DISCUSSION
DISCUSSION
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A. Law of the Case
A. Law of the Case
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First, the City contends that the district court was
powerless to declare section 7.18.1 invalid in its entirety on
remand since Ackerley I expressly stated that we were not ruling
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"unlawful any particular section of the ordinance." Ackerley I,
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8
88 F.3d at 40. In other words, the City proposes to construe the
quoted statement from Ackerley I as a binding pronouncement
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the "law of the case" that the unconstitutional effects of the
MZEA "grandfathering" provision cannot be redressed through the
judicial process, and, therefore, that the only relief available
to Ackerley in the present litigation would be an order enjoining
any application of section 7.18.1 to its noncommercial signs.
We begin our analysis with a review of the unusual
procedural posture in Ackerley I. The Ackerley complaint sought
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a judicial declaration that section 7.18.1, on its face and as
applied, contravened the First Amendment, as well as the Fifth
Amendment "takings" clause. Ackerley requested preliminary
injunctive relief only in relation to its First Amendment claim.
The district court thereafter denied preliminary injunctive
relief, however, based on its determination that Ackerley had
shown no "likelihood of success" on its First Amendment claim.
As both parties acknowledged that no factfinding would
be required to resolve the purely legal issues controlling their
First Amendment dispute, at their express request we decided to
bypass the provisional likelihood-of-success inquiry normally
undertaken in interlocutory appeals from orders denying prelimi-
nary injunctive relief, and instead to resolve those issues
finally. See Ackerley I, 88 F.3d at 35. Accordingly, and since
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neither party had sought a final determination as to all other
issues which would have had to be decided before final judgment
could be entered, nor even briefed the question regarding what
9
remedies might be available to Ackerley once it had been deter-
mined that the City had violated the First Amendment, we framed
our inquiry narrowly: "The issue we must decide is whether
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Cambridge may enforce its sign ordinance to require Ackerley to
remove its billboards." Id. at 36 n.6 (emphasis added). We
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responded in the negative.
Although we found neither the MZEA nor the Ordinance to
be unconstitutional in isolation, we held that their operation in
tandem (i) violated the First Amendment by favoring on-site
noncommercial speech over off-site noncommercial speech and (ii)
penalized off-site speakers based on the content of their past
speech. Id. at 37-39.
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Importantly, our Section II.D discussion in Ackerley I
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is captioned "Remedial Option," not "Remedial Options." Id. at
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39. Moreover, its context makes clear that the Remedial Option
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discussion did not purport to treat with all judicial "remedies"
available upon entry of final judgment, but with the more prag-
matic and immediate concern as to how the First Amendment infir-
mity might be avoided, either unilaterally by the City or by
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"construct[ing] a justifiable, content-neutral grandfathering
provision" in cooperation with the Commonwealth. Id. at 39-40.
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Finally, we went on to point out the awkward legal position in
which the City Council had been placed, in that though it unques-
tionably possessed a legitimate interest in curbing unsightly
signage, the Commonwealth of Massachusetts alone had the power to
provide a unilateral legislative remedy for the First Amendment
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10
infirmity by eliminating the discrepant "grandfathering" treat-
ment accorded on-site and off-site signs. Thus, nothing we said
in Section II.D remotely suggested that recourse to the legisla-
tive process was the only avenue open to Ackerley.3
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We repair once again to Ackerley I, where we prominent-
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ly noted that the Ordinance contained a severability clause. The
very next sentence stated: "We do not in this decision rule
unlawful any particular section of the ordinance." Were the
quoted sentence to mean, as the City implicitly insists, that no
Ordinance provision could be determined invalid on remand, our
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express reference to the severability clause in the immediate-
ly preceding sentence would be rendered meaningless.
Instead, the contextual focus in the quoted sentence
from Ackerley I was upon the word "particular," whose inclusion
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was a clear acknowledgement that the forthcoming factfinding
inquiry on remand could lead the district court to strike one or
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3The contrary interpretation proposed by the City presumes
that the thrust of our discussion in Section II.D is fairly
reflected in the following line of reasoning: The MZEA causes
the unconstitutional effects; the court is powerless to strike
down the MZEA; therefore, the Ordinance must be immune from
judicial invalidation in any part.
The City Council must take Commonwealth law as it finds it;
the MZEA supersedes 7.18.1; therefore, either the MZEA must be
modified through "the workings of the political process," or
7.18.1 must be declared unconstitutional and void, at least in
part.
Unless at least part of 7.18.1 was rendered invalid by the
MZEA, there can have been no legal basis whatever for the dis-
trict court order enjoining the City from directing Ackerley to
remove its noncommercial signs. Finally, if the district court
injunction, implicitly and necessarily, was predicated on a
partial invalidation of 7.18.1, then the district court must
necessarily have resolved the closely related severability
question as well.
11
more portions of the Ordinance, but not all. As severability
disputes usually turn on fact-intensive inquiries best left to
the trial court in the first instance, see infra Section II.B,4
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and no factfinding had occurred at the preliminary injunction
stage in Ackerley I, we accordingly reemphasized the limited
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nature of our holding: "we hold only that Cambridge may not
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require removal of signs displaying noncommercial messages based
on their exclusion from exemption under the state provision."
(Emphasis added.) Thus, Ackerley I made no pronouncement on the
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law of the case with respect to the severability issue.5
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B. Severability
B. Severability
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As the MZEA grandfathering provision was not amended in
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4See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S.
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490, 521 (1981) (holding that zoning ordinance violated First
Amendment, but remanding to lower court to determine if it might
"sustain the ordinance by limiting its reach to commercial
speech, assuming the ordinance is susceptible to this treat-
ment"), on remand, 649 P.2d 908 (Cal. 1982) (holding that uncon-
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stitutional provision could not be severed); see also, e.g.,
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United States Dep't of the Treasury v. Fabe, 508 U.S. 491, 509-10
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(1993) (remanding for severability determination); Planned
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Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 901 (1992) (same);
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FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230 (1990) (same);
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City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 772
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(1988) (same).
5Lastly, the City contends that Ackerley itself understood
Ackerley I as a final pronouncement on remedy since it requested
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attorney fees on remand. Its contention is beside the point.
Whether or not Ackerley prevailed on the severability question,
it had already achieved "prevailing party" status following
Ackerley I by vindicating its constitutional claim and gaining at
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least the right to extraordinary equitable relief (i.e., an
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injunction against the removal of its signs). See Hensley v.
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Eckerhart, 461 U.S. 424, 433 (1983) (defining "prevailing party"
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as one who "succeed[s] on any significant issue in litigation
which achieves some of the benefit the part[y] sought in bringing
suit").
12
response to Ackerley I, the constitutional infirmity persists.
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Therefore, permanent injunctive relief may not be granted
Ackerley without first determining whether any, and if so which,
portion(s) of the Ordinance may be unlawful. See, e.g., National
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Adver. Co. v. Town of Babylon, 900 F.2d 551, 554 (2d Cir. 1990)
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(de facto effect of such a targeted injunction is "to sever the
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unconstitutional portions of the ordinances and to leave the
remainder intact"). Since the district court did not address the
severability issue on remand, the case must be returned for
further proceedings, including any essential factfinding, unless
we can make the severability determination now, with confidence,
as a matter of law.
The severability vel non of a state statute or munici-
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pal ordinance is controlled by state law. See Leavitt v. Jane
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L., 116 S. Ct. 2068, 2069 (1997); Exxon Corp. v. Hunt, 475 U.S.
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355, 376 (1986). "'Where a statutory provision is unconstitu-
tional, if it is in its nature separable from the other parts of
the statute, so that they may well stand independently of it, and
if there is no such connection between the valid and the invalid
parts that the [legislative body] would not be expected to enact
the valid part without the other, the statute will be held good,
except in that part which is in conflict with the Constitution.'"
Mayor of Boston v. Treasurer & Receiver Gen., 429 N.E.2d 691, 695
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(Mass. 1981) (citation omitted). On the other hand, "[i]f the
court is unable to know whether the Legislature would have
enacted a particular bill without the unconstitutional provision,
13
it will not sever the unconstitutional provision, but will strike
the entire statute." Id.6
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At the very least, Ackerley is entitled to a judicial
declaration invalidating section 7.18.1 to the extent it would
require removal of nonconforming off-site signs carrying noncom-
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mercial messages. The severability issue thus devolves into an
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impressionistic inquiry into whether section 7.18.1 would have
been enacted had the City Council known that it would require
only the removal of nonconforming off-site signs carrying commer-
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cial messages. As we cannot divine with confidence what the City
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Council would have done, Mayor of Boston, 429 N.E.2d at 695, the
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case must be remanded to the district court with directions to
enter a final judgment invalidating section 7.18.1 in its entire-
ty. We explain.
Severability clauses, though probative of legislative
intent, are not conclusive. See, e.g., Reno v. ACLU, 117 S. Ct.
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2329, 2351 n.49 (1997) ("[A] severability clause is 'an aid
merely; not an inexorable command.'") (citation omitted).
Although Ordinance 7.30, see supra p. 4, only applies to
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invalidated "parts" of the Ordinance, that term begs the question
in the present context. Section 7.18.1 was neither drafted nor
enacted in separate "parts" which discretely banned commercial
and noncommercial off-site signs, either of which might be
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6Neither party contests the threshold severability determi-
nation that Ordinance 7.18.1, which applies exclusively to
existing signs, is readily severable from the remaining "parts"
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of the Ordinance prospectively regulating the aesthetic features
of future signs.
14
stricken independently of the other. Neither section 7.18.1, nor
any other "part" of the Ordinance, alludes in any way to a
substantive distinction between commercial and noncommercial
messages.7 Nor can such a substantive distinction be read into
section 7.18.1, without in effect gratuitously supplementing its
language with the phrase "except for off-site signs bearing
noncommercial messages." Therefore, as we cannot say with
confidence that the City Council envisioned section 7.18.1 as
anything but a unitary "part" of the Ordinance, the severability
clause avails the City nothing.
Furthermore, although at first blush it may appear that
settled principles of federalism and separation of powers would
counsel that the explicit severability presumption contained in
Ordinance 7.30 be given literal sway, there is more here than
meets the eye. The severability principles controlling the
present decision were intended principally to ensure that the
courts, state and federal, not dissuade or preempt legislative
bodies from debating and determining the appropriate public
policy in the first instance, within constitutional limits. See,
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e.g., Reno, 117 S. Ct. at 2351 n.49 ("'It would certainly be
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dangerous if the Legislature could set a net large enough to
catch all possible offenders and leave it to the courts to step
inside and say who could rightfully be detained and who should be
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7Although Ordinance 7.17 allows on-site sign owners to
replace their commercial messages with noncommercial messages,
this provision is merely permissive, and imposes no policing
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burden on the City whatsoever, since on-site signs were allowed
without regard to their message content.
15
set at large. This would, to some extent, substitute the judi-
cial for the legislative department of the government.'") (cita-
tion omitted). Thus, proper respect for the principles of
federalism and separation of powers counsels against construing
section 7.30 as a "cure all" for the severability ills in the
present Ordinance.
The City further contends that the Council enacted the
Ordinance to eliminate nonconforming signs to the maximum extent
allowed by law, and that severance would prevent Ackerley and
other sign owners from converting their off-site sign messages to
more lucrative commercial messages, thereby providing a strong
financial disincentive to maintaining such signs in the future.8
Be that as it might, however, the suggested distinction also
would entail significant administrative burdens and expense for
the City, which would be required to police nonconforming off-
site signs to determine whether they carried only the permitted
"noncommercial" messages, articulate objective criteria for
making the often blurry distinction between "commercial" and
"noncommercial" speech, and provide sign owners with a forum in
which to address their challenges to, and appeals from, any
adverse City determination that a particular message was "commer-
cial." See Metromedia, Inc. v. City of San Diego, 649 P.2d 903,
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908 (Cal. 1982) (rejecting "severability" claim on same ground).
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8Since no factfinding occurred on remand, however, the intu-
itive premise advanced by the City finds no record support. For
example, the record is devoid of evidence that noncommercial
messages necessarily command less revenue.
16
Moreover, nothing in the Ordinance indicates that the
Council ever considered that the City would need to police, hear,
or determine the commercial-noncommercial distinction in order to
implement its chosen aesthetic objectives. Nor has the City
pointed to any probative evidence of such legislative consider-
ation which might be material on remand. Thus, although the
blurriness of the commercial-noncommercial distinction itself may
not render the amended ordinance unconstitutional, courts con-
fronted with severability questions clouded by serious uncertain-
ties regarding whether the appropriate legislative body ever
considered the effect of a severability provision in the relevant
context, ought not be anxious to arrogate the legislative prerog-
ative inherent in determining the preferred or more efficient
means of pursuing the particular goals chosen by the responsible
legislative body.9
The City Council may decide to adopt less onerous
initiatives than the presumably burdensome and expensive adminis-
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9In a similar vein, the City contends that Ackerley waived
any entitlement to wholesale invalidation of 7.18.1 by conced-
ing, during the Ackerley I appeal, that the City would have had
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the authority to ban off-site commercial signs while allowing on-
site commercial signs. See Ackerley I, 88 F.3d at 37 n.8 (citing
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Metromedia, 453 U.S. at 512). Far from noting any such "conces-
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sion" by Ackerley, however, we simply observed that Ackerley "did
not contest" the point. Id. Because the City had enacted no
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such ordinance i.e., one simply banning off-site commercial
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signs while allowing on-site commercial signs but had chosen
to ban off-site noncommercial signs as well, Metromedia was
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wholly inapposite in Ackerley's first appeal. Moreover, for
purposes of the present appeal, the threshold issue no longer is
whether the City has the authority to enact an ordinance banning
off-site commercial signs while allowing on-site commercial
signs, but whether it envisioned reverting to such a regime
should its ban on off-site noncommercial signs be struck down.
17
trative procedures which would be required were we not to invali-
date section 7.18.1 in toto. For example, it might determine
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that the municipality's interests would be better served by
attempting to persuade the state legislature to approve a con-
tent-neutral grandfathering provision based exclusively on the
physical characteristics of existing signs, rather than their
content. See Ackerley I, 88 F.3d at 39-40. Thus, we think such
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important policy decisions are for the Council in the first
instance.
III
III
CONCLUSION
CONCLUSION
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As the City points to no factual circumstance which, if
demonstrated on remand, would affect our severability determina-
tion, we can discern no substantial benefit from a further
remand. Accordingly, the case is remanded to the district court
for entry of final judgment declaring section 7.18.1 invalid in
__
toto, and enjoining the City from requiring Ackerley to remove
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signs pursuant to section 7.18.1 as presently written.10 So
So
__
ordered.
ordered.
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10The City further requests that we reconsider our holding,
in Ackerley I, that application of the Ordinance to Ackerley
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would be unconstitutional. Such relief is beyond our preroga-
tives. See Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st
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Cir. 1995) (noting generally that First Circuit panels are bound
by prior panel decisions directly on point).
18
