Zanna et al v. Mohave, County of et al

Filing 55

ORDER granting 39 Defendants' Motion for Summary Judgment; denying 41 Plaintiffs' Motion for Partial Summary Judgment. The Clerk of Court is directed to terminate this action. Signed by Judge G Murray Snow on 9/6/12.(DMT)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15
16
17
18
19

Gianluca Zanna and Bridget Langston-)
Zanna, husband and wife,
)
)
Plaintiffs,
)
)
vs.
)
)
)
Mohave County, a jural entity; Ron)
Walker and Jane Doe Walker, husband and)
wife; Tom Sockwell and Jane Doe)
Sockwell, husband and wife; Buster)
Johnson and Jane Doe Johnson, husband)
and wife; Gary Watson and Jane Doe)
Watson, husband and wife; and William)
Ekstrom and Jane Doe Ekstrom, husband)
and wife,
)
)
Defendants.
)
)
)

No. CV-10-8149-PCT-GMS
ORDER

20
21

Pending before the Court are Defendants’ Motion for Summary Judgment (Doc.

22

39) and Plaintiffs’ Motion for Summary Judgment (Doc. 41). For the reasons discussed

23

below, Defendants’ motion is granted and Plaintiffs’ motion is denied.1

24
25
26
27
28

1

Plaintiffs’ request for oral argument is denied because the parties have had an
adequate opportunity to discuss the law and evidence and oral argument will not aid the
Court’s decision. See Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev., 933 F.2d
724, 729 (9th Cir. 1991).

1
2

BACKGROUND
On November 13, 2009, Gianluca Zanna and his wife Bridget Langston-Zanna

3

(“Plaintiffs”)—who

4

Minutemen—attended a Town Hall presentation by Arizona Senator John McCain. The

5

presentation was held inside the Board of Supervisors Auditorium at the Mohave County

6

Administration Building (“MCAB”). (Doc. 40-1, Ex. H at 28; id., Ex. G at 1). The MCAB

7

houses many County departments, including the Assessor’s Office, the Health Department,

8

and the bioterrorism group. (Id., Ex. B at 38:11–18). The Board of Supervisors auditorium

9

is often used by the Board of Supervisors, the governing body of Mohave County, for public

10

are

members

of

a

political

group

called

the

Mohave

meetings. (Id., Ex. G at 1).

11

Prior to Senator McCain’s presentation, Zanna passed out flyers outside the entrance

12

to the MCAB while his wife passed out flyers inside the auditorium. (Doc. 40-1, Ex. A at

13

58:7–60:25). These flyers were entitled “The Real John McCain” and scrutinized Senator

14

McCain’s voting record. (Id., Ex. A at 49:14–25). At some point prior to the start of the

15

meeting, security guards told Langston-Zanna that she was not allowed to pass out the flyers

16

inside the building. When Zanna came into the building, his wife relayed to him the security

17

guards’ instruction. Zanna approached Defendant Buster Johnson—the member of the

18

Mohave County Board of Supervisors who was apparently in charge of the meeting that

19

night—and asked why they were not allowed to pass out the flyers. (Doc. 40-1, Ex.

20

62:4–64:23). Johnson told Zanna that the County “didn’t allow any kind of politicking on

21

County property” and that this had been the policy as long as he had been on the County

22

Board of Supervisors. (Doc. 41-1, Ex. D at 23:6–7, Ex. F at 27:17–19). Plaintiffs

23

immediately stopped handing out flyers. There is no evidence that any other groups were

24

passing out flyers in the MCAB that day.

25

During his presentation, Senator McCain spoke on the topic of healthcare legislation.

26

At the end of the presentation, Senator McCain passed a microphone around the room and

27

asked the meeting attendees for their “questions, comments, or insults.” (See DVD entitled

28

“McCain Town Hall Meeting”). Various topics were raised by the attendees, including
-2-

1

Veterans’ benefits, environmental concerns, and Wall Street greed. The last meeting attendee

2

to get the microphone—who on the recorded DVD of the presentation appears to be Gianluca

3

Zanna—scrutinized Senator McCain’s voting record and then encouraged people at the

4

meeting to “go to mohaveminutemen.com” for more information. (Id.). Nobody tried to stop

5

this man from addressing the audience. After he finished his comments, he passed the

6

microphone back to Senator McCain.

7

On August 13, 2010, Plaintiffs filed a four-count complaint against Mohave County

8

and five different County officials, namely Buster Johnson, Ron Walker, Tom Sockwell,

9

Gary Watson, and William Ekstrom (collectively “Defendants”). Plaintiffs brought counts

10

against all Defendants for negligence, intentional infliction of emotional distress (IIED), and

11

deprivation of their First Amendment rights pursuant to 42 U.S.C. § 1983. Plaintiffs also

12

brought a defamation claim against Defendants Ron Walker and Tom Sockwell for “writ[ing]

13

derogatory letters about [Plaintiffs] and publish[ing] them in local newspapers.” (Doc. 1, ¶

14

22, 46–52). Plaintiffs request compensatory, general, specific, and exemplary damages for

15

each claim.

16

On June 6, 2011, Plaintiffs voluntarily dismissed all their claims against Defendants

17

except for the § 1983 claim. (Doc. 36). Defendants now move for summary judgment against

18

Plaintiffs on this remaining claim. (Doc. 39). Plaintiffs move for partial summary judgment

19

on the claim, “requesting a ruling from the Court that, as a matter of law, the Town Hall

20

meeting on November 13, 2009 created a designated public forum.” (Doc. 41).

21
22

DISCUSSION
I.

Legal Standard

23

A.

24

Summary judgment is appropriate if the evidence, viewed in the light most favorable

25

to the nonmoving party, demonstrates “that there is no genuine dispute as to any material fact

26

and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Substantive

27

law determines which facts are material and “[o]nly disputes over facts that might affect the

28

outcome of the suit under the governing law will properly preclude the entry of summary

Summary Judgment Standard

-3-

1

judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact issue is

2

genuine ‘if the evidence is such that a reasonable jury could return a verdict for the

3

nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)

4

(quoting Anderson, 477 U.S. at 248). When the nonmoving party “bear[s] the burden of proof

5

at trial as to an element essential to its case, and that party fails to make a showing sufficient

6

to establish a genuine dispute of fact with respect to the existence of that element, then

7

summary judgment is appropriate.” Cal. Architectural Bldg. Prods., Inc. v. Franciscan

8

Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477

9

U.S. 317, 322–23 (1986)).

10

B.

11

Even on government property, “[c]itizens are not entitled to exercise their First

12

Amendment rights whenever and wherever they wish.” Kindt v. Santa Monica Rent Control

13

Bd., 67 F.3d 266, 269 (9th Cir. 1995). “The Government, ‘no less than a private owner of

14

property, has the power to preserve the property under its control for the use to which it is

15

lawfully dedicated.’” U.S. v. Grace, 461 U.S. 171, 178 (1983) (citing Adderly v. Florida, 385

16

U.S. 39, 47 (1966)). A court must perform “forum analysis to determine when a

17

governmental entity, in regulating property in its charge, may place limitations on speech.”

18

Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130

19

S. Ct. 2971, 2984 (2010). Where forum analysis is concerned, government property is sorted

20

into four categories: “(1) a traditional public forum, (2) a designated public forum, (3) a

21

limited public forum, or (4) a nonpublic forum.” Wright v. Incline Vill. Gen. Improvement

22

Dist., 665 F.3d 1128, 1134 (9th Cir. 2011). See also Martinez, 130 S. Ct. at 2984 n. 11; Ark.

23

Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998).

24

Forum Analysis

1.

Traditional Public Forum

25

A traditional public forum is “government property that has been traditionally open

26

to the public for expressive activity.” United States v. Kokinda, 497 U.S. 720, 727 (1990).

27

For instance, locations like streets and parks have been recognized as public forums, as they

28

are open to the public and have traditionally been used for “communicating thoughts between
-4-

1

citizens, and discussing public questions.” Int’l Soc. for Krishna Consciousness, Inc. v. Lee,

2

505 U.S. 672, 679 (1992) (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515

3

(1988)). That an area is “open to the public” is insufficient to establish it as a public forum.

4

Kokinda, 497 U.S. at 729. The area must also be “dedicated to [ ] expressive activity.” Id. at

5

730. To determine whether a public location is a traditional public forum, courts must look

6

at “(1) the actual use and purposes of the property, particularly status as a public

7

thoroughfare and availability of free public access to the area, (2) the area’s physical

8

characteristics, including its location and the existence of clear boundaries delimiting the

9

area, and (3) traditional or historical use of both the property in question and other similar

10

properties.” Wright, 665 F.3d at 1135 (quoting ACLU of Nev. v. City of Las Vegas, 333 F.3d

11

1092, 1100–01 (9th Cir. 2003)) (internal quotations omitted).

12

“[I]n traditional public forums . . . ‘any restriction based on the content of . . . speech

13

must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a

14

compelling government interest.’” Martinez, 130 S. Ct. at 2984 n. 11 (quoting Pleasant

15

Grove City v. Summum, 555 U.S. 460, 469 (2009)). Any restriction based on the time, place,

16

or manner of speech in traditional public forums must be “content-neutral, [ ] narrowly

17

tailored to serve a significant government interest, and leave open ample alternative channels

18

of communication.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45

19

(1983).

20

2.

Designated Public Forum

21

A designated public forum is “government property that has not traditionally been

22

regarded as a public forum” but which “is intentionally opened up for that purpose.”

23

Summum, 555 U.S. at 469. “Government restrictions on speech in a designated public forum

24

are subject to the same strict scrutiny as restrictions in a traditional public forum.” Id. at

25

469–470. See also Perry, 460 U.S. at 45 (“The Constitution forbids a state to enforce certain

26

exclusions from a forum generally open to the public even if it was not required to create the

27

forum in the first place.”).

28
-5-

1

3.

Limited Public Forum

2

“The government does not create a [designated] public forum . . . by permitting

3

limited discourse.” Forbes, 523 U.S. at 677) (citing Cornelius v. NAACP Legal Defense and

4

Educ. Fund, Inc., 473 U.S. 788, 802 (1985)) (alteration in original). Rather, “by opening

5

property limited to use by certain groups or dedicated solely to the discussion of certain

6

subjects,” governmental entities create “limited public forums.” Martinez, 130 S. Ct. at 2984

7

(internal quotation omitted). See also DiLoreto, v. Downey Unified Sch. Dist. Bd. of Educ.,

8

196 F.3d 958, 965 (9th Cir. 1999) (stating that a limited public forum is “a type of nonpublic

9

forum that the government intentionally has opened to certain groups or to certain topics”).

10

In limited public forums, “a government entity may impose restrictions on speech that are

11

reasonable and viewpoint neutral.” Summum, 555 U.S. at 470.

12

The reasonableness requirement “requires more of a showing than does the traditional

13

rational basis test; i.e., it is not the same as establish[ing] that the regulation is rationally

14

related to a legitimate government objective.” Sammartano v. First Judicial District Court,

15

303 F.3d 959, 966–67 (9th Cir. 2002) (internal quotation omitted). Rather, there must be

16

“evidence in the record” that “the restriction reasonably fulfills a legitimate need.” Id. at 967.

17

A viewpoint neutral restriction is not reasonable merely because it eliminates a minor

18

nuisance for the government, but it is reasonable where it helps fulfill the purpose of the

19

forum. Compare Martin v. City of Struthers, Ohio, 319 U.S. 141, 143 (1943) (holding that

20

one’s right to distribute literature cannot be withdrawn based on “the minor nuisance for a

21

community of cleaning litter from its streets”), with Krestan v. Deer Valley Unified School

22

District, 561 F. Supp. 2d 1078, 1092 (D. Ariz. 2008) (holding that “it is reasonable for [a

23

school] to place restrictions on the number of days during which students can distribute

24

leaflets” because “[o]rder and appearance are no doubt important to [the school’s]

25

educational purpose.”). Failure by the government to enact simpler available alternatives

26

suggests that the enacted restriction is unreasonable. Sammartano, 303 F.3d at 967.

27

A restriction is viewpoint neutral where it “‘serves purposes unrelated to the content

28

of expression’ and only incidentally burdens some speakers, messages, or viewpoints.” Alpha
-6-

1

Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 800 (9th Cir. 2011) (quoting Martinez, 130

2

S. Ct. at 2994). In other words, a viewpoint neutral policy does not “suppress expression

3

merely because public officials oppose the speaker’s view.” Wright, 665 F.3d at 1134

4

(quoting Preminger v. Peake, 552 F.3d 757, 765 (9th Cir. 2008)).

5

II.

Legal Analysis

6

Plaintiffs claim that Defendants violated their First Amendment rights by “prohibiting

7

political activity and/or the dissemination of political information on county property used

8

as a public forum.” (Doc. 1, ¶ 42). Plaintiffs do not argue that the MCAB is a traditional

9

public forum, or that individuals have historically been permitted to leaflet inside the

10

building. Plaintiffs instead contend that the County made the MCAB a designated public

11

forum on November 13, 2009 when it “purposefully invited and allowed Senator John

12

McCain to speak at the Administrative building regarding health care issues . . . . [and]

13

opened the floor to Mr. McCain’s [constituents] to comment and ask questions.” (Doc. 41

14

at 4). Defendants, meanwhile, contend that the McCain meeting did not turn the MCAB into

15

a designated public forum, arguing that the meeting was “highly structured” and that the

16

County was not opening up the building for public discourse. (Doc. 39 at 7).

17

“The government does not create a [designated] public forum . . . by permitting limited

18

discourse.” Arkansas Educ. Television Com’n v. Forbes, 523 U.S. 666, 677 (1998) (citing

19

Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 802 (1985))

20

(alteration in original). Accordingly, the government can “open[ ] property limited to use by

21

certain groups or dedicated solely to the discussion of certain subjects” without speech

22

restraints on such property being subject to strict scrutiny. Martinez, 130 S. Ct. at 2984. For

23

instance, in Kindt v. Santa Monica Rent Control Bd., the Ninth Circuit held that due to the

24

“highly structured nature of city council and city board meetings,” such meetings are best

25

classified as nonpublic or limited public forums, even where the city sets time aside in such

26

meetings for public comment. 67 F.3d 266, 270, 271 (9th Cir. 1995). Like the city council

27

meetings at issue in Kindt, the Senator McCain meeting was highly structured. After

28

Supervisor Johnson greeted the audience to begin the meeting, he turned the time over to John
-7-

1

Salem, the Mayor of Kingman, Arizona, who introduced Senator McCain by reading a short

2

biography. (See DVD entitled “McCain Town Hall Meeting”). Senator McCain then gave a

3

presentation to the attendees on healthcare legislation in Congress. (See id.). Although the

4

meeting’s attendees were allowed to ask questions and make comments following the

5

Senator’s presentation, periods of a structured meeting set aside for public participation do

6

not, without more, transform a nonpublic or limited public forum into a public one. See Kindt,

7

67 F.3d at 270–72. The McCain meeting is therefore best classified as a limited public or

8

nonpublic forum. In such forums, restraints imposed on speech activities like leafleting are

9

permissible so long as the restraints are (1) “viewpoint neutral” and (2) “reasonable in light

10

of the purpose served by the forum.” Davenport v. Washington Educ. Ass’n, 551 U.S. 177,

11

189 (2007).

12

First, any restraints placed upon speech by the County must have been “viewpoint

13

neutral.” Id. Plaintiffs contend that the fact that other meeting attendees were allowed to ask

14

questions on a variety of topics whereas Plaintiffs were precluded from passing out flyers

15

scrutinizing Senator McCain’s voting record shows that Defendants discriminated against

16

Plaintiffs’ specific viewpoint. (Doc. 50 at 6–7). Supervisor Johnson has testified, however,

17

that he never looked at their flyer and did not know what its contents were when he told

18

Zanna that Plaintiffs were not allowed to pass it out. (Doc. 40-1, Ex. C at 27:20–28:2).

19

Plaintiffs do not contend otherwise. Moreover, Plaintiffs have not presented evidence that

20

other meeting attendees were permitted to pass out flyers. Nor have Plaintiffs presented

21

evidence that they were prohibited from commenting on Senator McCain’s voting record

22

during the meeting’s question and answer period. To the contrary, as discussed above, one of

23

the meeting attendees was allowed to make a comment scrutinizing the Senator’s voting

24

record and encouraging other meeting attendees to visit the website of the Mohave

25

Minutemen—the same organization with which Zanna is associated. (See DVD entitled

26

“McCain Town Hall Meeting”). In short, the County restricted a particular manner of speech

27

at the meeting—namely leafleting—but did not target Plaintiffs’ particular viewpoint. A

28

manner regulation, without more, does not constitute viewpoint discrimination. Perry, 460
-8-

1

U.S. at 46 (stating that in nonpublic forums, “the State, no less than a private owner of

2

property, has power to preserve the property under its control for the use to which it is

3

lawfully dedicated” and can impose “time, place, and manner regulations”).

4

In addition to being viewpoint neutral, any speech restraints imposed by the County

5

at the McCain meeting must have been “reasonable in light of the purpose served by the

6

forum.” Davenport, 551 U.S. at 189. See also Cornelius, 473 U.S. at 808 (“The Government's

7

decision to restrict access to a nonpublic forum need only be reasonable; it need not be the

8

most reasonable or the only reasonable limitation.”). The purpose of Senator McCain’s Town

9

Hall was to allow him to inform his constituents about healthcare legislation in Congress and

10

to give them the opportunity to ask him questions. Given such purpose, a prohibition on

11

leafleting in the auditorium during the meeting was a reasonable speech restraint. To allow

12

the unfettered distribution of flyers and other political information inside the building during

13

the meeting would tend to distract attendees and interfere with the Senator’s ability to

14

effectively communicate with his constituents. Moreover, the Supreme Court has held that so

15

long as “access barriers are viewpoint neutral . . . it [is] significant that other available

16

avenues for the group to exercise its First Amendment rights lessen the burden created by

17

those barriers.” Martinez, 130 S. Ct. at 2991. As discussed above, the question and answer

18

session following the Senator’s presentation was an alternative avenue available for Plaintiffs

19

to express their viewpoint—and at least one member of the Mohave Minutemen was allowed

20

to so participate. This alternative avenue lessened any burden on Plaintiffs created by the

21

leafleting barrier.
CONCLUSION

22
23

Because Defendants’ restriction on leafleting at the McCain meeting was both

24

viewpoint-neutral and reasonable, Defendants are entitled to judgment against Plaintiffs as

25

a matter of law.

26
27

IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment
(Doc. 39) is granted.

28
-9-

1
2
3

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc.
41) is denied. The Clerk of Court is directed to terminate this action.
DATED this 6th day of September, 2012.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 10 -