A unanimous Supreme Court released its decision in Pleasant Grove City, Utah v. Summum, No. 07-665, yesterday. Justice Alito wrote the opinion, with five justices filing concurring opinions – Justice Stevens (joined by Justice Ginsburg), Justice Scalia (joined by Justice Thomas), Justice Breyer, and Justice Souter. The question before the Court was whether the Free Speech Clause of the First Amendment entitled a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments, including a Ten Commandments monument, were previously erected and currently displayed. In brief, the Court held that the placement of a permanent monument in a public park was a form of government speech and was, therefore, not subject to scrutiny under the Free Speech Clause. Although parks were a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park was not a form of expression to which forum analysis applied.
The facts in the case were as follows. Pioneer Park in Pleasant Grove City contained a number of buildings, artifacts, and permanent displays, including the first City Hall and fire department buildings, a 9/11 memorial, and a Ten Commandments monument from the Fraternal Order of Eagles, donated in 1971. The City’s criteria for permanent displays in the park required that monuments be directly related to the City’s history, or be donated by a group with “long-standing ties to the . . . community.” Summum, a religious group, applied to have a monument of its Seven Aphorisms displayed, and advised that its proposed monument would be similar to the Ten Commandments monument already in the park. (The Summum religion includes the belief that, when Moses received stone tablets from God on Mount Sinai, he received two separate sets of tablets – the first was inscribed with the Seven Aphorisms; the second, later, tablet contained the Ten Commandments. Moses revealed the first tablet to only the few that were sufficiently spiritually mature, and received the Ten Commandments (something of a poor second) after he destroy the Aphorisms tablet.) After the City denied Summum’s request, citing its policy, Summum sued, alleging a violation of its free speech rights. (Summum argued, but abandoned, its Establishment Clause argument before the matter reached the appellate courts.)
The Tenth Circuit held that the park monuments constituted private, not government, speech, in a traditional public forum. Pleasant Grove City’s content-based choices and policy failed strict scrutiny review, and the City was ordered to accept the monument. A divided Tenth Circuit subsequently denied the City’s petition for a rehearing and rehearing en banc. The judges who dissented on the denial of rehearing (who would be referred to in the Supreme Court decision), pointed out that parks, as traditional public forums, had to be open to speeches, demonstrations, and other forms of transitory expression. The City, in this case, had not, “by word or deed, invite[d] private citizens to erect monuments of their own choosing in these parks. It follows that any messages conveyed by the monuments they have chosen to display are ‘government speech,’ and there is no ‘public forum’ for uninhibited private expression.”
Following the grant of certiorari, IMLA filed an amicus brief in support of the City, authored by Professor Mary Jean Dolan of the John Marshall Law School. The brief included a survey of existing monuments and placement policies in U.S. municipalities. In its opinion, the Supreme Court several times cited the IMLA brief.
Beginning its analysis, the U.S. Supreme Court noted that there were no prior decisions on the application of the Free Speech Clause to a government entity’s acceptance of privately donated, permanent monuments. First, the government had a right of expression, the “right to speak for itself.” While the Free Speech Clause restricted the government’s regulation of private speech, including speech in traditional public forums, it did not apply to the government’s own speech. Permanent monuments accepted by governments and placed on public property, despite the fact of being donated by private entities, “typically represent government speech.” Such displays were a traditional form of a government’s expression, and “throughout our Nation’s history, the general government practice with respect to donated monuments [was] one of selective receptivity,” demonstrated by way of design input, prior submission requirements, requests for modifications, and legislative approval for specific content. Pleasant Grove City, like other governments, took into account content-based factors like local history and culture. Thus, in making the decision to accept a permanent monument, the municipality was choosing its message.
The Court rejected Summum’s argument that something more definite or formal (e.g., passing a resolution) was needed before a government could be said to adopt a monument as its own expressive vehicle. “We see no reason for imposing a requirement of this sort,” adding that the City in this case took ownership of most of the monuments in the park. To require more would be a “pointless exercise that the Constitution does not mandate.” This would be unworkable for other reasons: a monument, even a text-based one, could easily convey more than one message. As demonstrated by the Statue of Liberty, the message intended by monument’s creator or donor could be different than that expressed by the government accepting the monument, and could change over time.
Public form analysis was “out of place” in addressing such displays. The installation of permanent monuments was not analogous to other forms of speech on government public property. Unlike demonstrating or leafleting, parks could only accommodate a finite number of permanent displays. The application of content-neutral time, place and manner restrictions was not feasible because the “obvious truth of the matter [was] that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations.”
Justice Scalia and Justice Souter, in their concurring opinions, touched briefly on the “shadow” in this case, the Establishment Clause. Justice Scalia, referring to the Court’s earlier ruling in Van Orden v. Perry, 545 U. S. 677 (2005) (Ten Commandments monuments had an “undeniable historical meaning”) added that the city here need “not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.” Justice Souter, taking a broader look, indicated that if a monument had “some religious character, the specter of violating the Establishment Clause” would require the city “to take care to avoid the appearance of a flat-out establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized.” However, it was “simply unclear how the relatively new category of government speech [would] relate to the more traditional categories of Establishment Clause analysis, and this case [was] not an occasion to speculate.”
Justices Stevens and Breyer also echoed the need for municipalities to be careful. Justice Stevens indicated the decision was not a “free license” for a government to “communicate offensive or partisan messages”; Justice Breyer likewise indicated that the “government speech” doctrine would not permit a city to “discriminate in the selection of permanent monuments on grounds unrelated to the display’s theme, say solely on political grounds.”
A copy of the opinion is available online at http://www.supremecourtus.gov/opinions/08pdf/07-665.pdf
IMLA thanks all of the participants in the survey done as part of our brief, and thanks Professor Dolan for her excellent brief.
Professor Dolan will be speaking at the upcoming IMLA Mid-Year Seminar about this case.
Posted By: Warren Kraft, Assistant City Attorney/HR Director, West Bend, Wisconsin
As municipal attorneys, we tend to be generalists with perhaps one or two areas of the law where we try to specialize. Some liken us to our family doctor, who is trained to diagnose and refer when needed. Oftentimes, we find ourselves in interesting situations if only because we need to be the quick study we told our interviewers that we pride ourselves on.
Take, for example, interviewing the prospective municipal employee. Gifted as we may be in the deposition and trial setting, our skill to ask questions may sometimes take a back seat because the interview setting is designed for different purposes. [Consider this passage: “Is the job interview The Moment of Truth? Nah. The Land of Bunk is more like it. Never have more stupid questions been answered with the same repetitive drivel as in the job interview.” From “The New Interview”, Ask the Headhunter, by Nick A. Corcodilos. ] Presumably, when advising the personnel director and the interview team, the municipal attorney can provided guidance about the legality of certain questions and data gathering. If one googles “Do’s and Don’ts” & “Interview Questions,” one receives nearly 300 relevant “hits,” more or less from the prospective employee perspective.
The Student Employment Center of Mott Community College lists 20 Do’s and nine Don’ts. [http://www.mcc.edu/14_ces/ces_interview_do_dont.shtml] There is a small link to appropriate dress on the same page. Based on one recent interviewee’s appearance, this instructive piece could have addressed this item. Though the candidate wore a sport coat, the faded pink Ralph Loren shirt was untucked and also revealed a grey T-shirt with a navy blue neck band. The receptionist staff wondered if the candidate could find a better pair of jeans which even featured a tear in the back. Perhaps the candidate’s student placement service can feature this link on its university website for future reference. [http://www.quintcareers.com/dress_for_success.html]
In that same interview, the candidate’s reaction to successfully answering a technical question required stifling immediate reaction. A fist-pump accompanied an exclamation, “Alright, I nailed it!” As the candidate sat down again, the interviewers heard, “I am so pumped. I don’t care how the rest of the interview goes.” The interview continued, if only because there was a set list of questions asked of each candidate. Most of us would safely assume the fist pump and exclamations of self-satisfaction wait until the candidate is out of earshot, if not completely out of the building.
However, there is one interview question that might give municipal attorneys pause, not just because some may find themselves seeking new venues, but perhaps because it can provide a reflective opportunity as to the attorney’s value to the organization and to its customers. “What is your greatest weakness?”
In a recent article in “Managing Your Careers” [©2009 Dow Jones & Company], JoAnn S. Lublin said that it is a question designed to make a monkey out of the candidate. She wrote, “A careful game plan could help you cope with the shortcoming query in a way that highlights your fit for a desired position. … Career specialists suggest you take stock of your weaknesses, focusing on job-related ones that won’t impede your ability to perform your duties.”
In the day-to-day activities, municipal lawyers can become targets for all sorts of barbs tossed their way. A critic may say that it is the attorney’s sole job to say “no” as if it was an anti-drug use campaign. Another critic might proffer that the municipal lawyer’s primary purpose is to find the loopholes, a chink in the armor. Regardless of issue, the criticism attempts to showcase a weakness in performance, skill, ability or talent that challenges the practitioner more than an interview question. The challenge ought to bring the practitioner back to the reason for seeking the particular position during the interview process.
Corcodilos further writes, “Your worth is what makes an employer want to hire you. Your worth is determined by the value you offer the employer. That means you have to take the initiative in your job hunt. An employer cannot extract value from you — you must offer it. You can only offer value if you know what is valuable to the employer. …”
The family doctor offers a value that keeps the patient coming back. So does the municipal attorney, one of the many reasons for continuing to practice in this legal field.
Maybe that is worth a fist pump!
Posted By: Dwight Merriam, Partner, Robinson & Cole
Looking back over the developments of the last week, I was surprised to see a zoning and code enforcement technique that I hadn’t heard of – probably because of my sheltered existence, encamped here as I have been these last three and a half decades in the “Land of Steady Habits.”
When is the best time to nail a miscreant? It is at the time when they most need the government. Try renewing your driver’s license when you have a pile of unpaid parking tickets in your glove box and you won’t get far in most states. You’ll never get your diploma until you pay your bookstore bill, right?
So, here’s a good way to nab zoning and code violators – make them submit to an inspection if they want to sell and enforce it by prohibiting the city clerk from issuing any of the required real estate transfer stamps unless the seller ponies up a Certificate of Compliance that the property doesn’t violate zoning.
In the case of Mann v. Calumet City, Illinois, the U.S. District Court for the Northern District of Illinois, 2009 U.S. Dist. LEXIS 12192, last Tuesday, February 17th, found a Point of Sale Inspection Program (POSI) didn’t violate federal substantive and procedural due process rights.
The City Department of Inspectional Services conducts the POSI of real property in connection with a taxable transfer of real estate. The purpose of the POSI is to determine whether such property is in compliance with requirements related to public health, safety, and welfare including property maintenance codes and conversions. In addition, sellers must pay off their water bills and other fees owed to the City prior to the issuance of transfer tax stamps.
The court held that: “The right to sell one’s property is not among this list [of fundamental rights], and is not a fundamental right for purposes of the Fourteenth Amendment due process analysis.”
“Each of the complained-of provisions of the Ordinance passes the low threshold of rational basis review, as does the basic premise behind the POSI: that a municipality would ‘aim to prevent the surreptitious conversion of single-family homes to multi-family dwellings and to retard the physical deterioration of the housing stock,’ [citation omitted] through means of a moderately burdensome point-of-sale inspection regime.”
This is a blog, so please come forward freely with your comments. Do you have a POSI? Where? Any issues? Do you use other techniques for zoning and code enforcement? If you have a POSI you don’t need a posse, right?
We’re back! We’ve posted our Feb 16 Monday Land Use Blog under its original date. Scroll down, or to make it easy, click here.
Posted By: Adrian Herbst, The Baller Herbst Law Group, P.C.
Over the past few weeks Congress has debated the prospect of delaying the mandatory shutoff of analog television broadcast, originally set to occur February 17. Following a vote by the House on February 5 to delay the transition date to June 12, and with President Obama’s stated intention to sign such a bill, it is now safe to conclude that DTV transition will in fact be delayed. We have drafted this brief memorandum to highlight a few key points relating to the DTV transition postponement.
The need for the delay apparently lies in several problems. The first relates to the federal converter box subsidy, administered by the National Telecommunications and Information Administration (NTIA). In the fourth quarter of 2008, it came to light that the converter box subsidy — by which every American could obtain two $40 coupons toward the purchase of equipment enabling them to receive digital broadcast signals and view them on an analog TV — was apparently running out of funds. In response to an inquiry from Rep. Markey (D-MA), NTIA in December 2008 stated that the original estimate of 51.5 million coupons was too low, and that it expected to receive 60 million coupon requests through March 2009. The NTIA started a waiting list as of January 4, 2009, meaning that many consumers would be unlikely to receive their vouchers before February 17.
Second, retailers reported a possible shortage of the converter boxes themselves. NTIA reported that 17 million coupons had been redeemed by December 17, 2008, but only 11 million boxes were anticipated to be available to consumers through June 2009.
Finally, the FCC stated that, based on experience with an early transition trial in Wilmington, Delaware, the FCC’s call center may not be adequately staffed to handle the anticipated flood of calls relating to the transition.
As a result, in January 2009, President Obama asked Congress to consider postponing the DTV transition, and Senate Commerce Committee staff began working on a draft bill.
Opposition emerged immediately, in particular led by Rep. Barton (R-TX), as well as Verizon (Verizon later changed its stance and ultimately supported the bill). Nevertheless, the Senate and House both passed similar versions of the bill, and its next stop is President Obama’s desk.
III. DTV DELAY ACT
The DTV Delay Act (S.352, text available at http://www.whitehouse.gov/briefing_room/dtv_delay_act/ formally moves the DTV transition date from February 17 to June 12, and allows people with expired converter box coupons to apply for new ones. The term of the NTIA coupon program is extended, but additional funding for NTIA to address the converter box coupon shortfall is included not within the DTV delay bill, but in the economic stimulus bill, which is not expected to be signed anytime soon.
IV. EARLY ANALOG SHUTOFF
The DTV Delay Act permits broadcasters to switch from analog to digital prior to June 12, if they wish (consistent with the original DTV transition law and rules), but such stations must follow certain FCC procedures prior to doing so. The FCC is empowered to deny a broadcaster’s request for early transition based on interference or other concerns. The FCC has said that approximately 61% of broadcasters could conceivably transition early and would face no problems with regard to interference. The FCC has informed broadcast stations that want to switch from analog to digital as of the original February 17 date to notify the Commission by February 9.
The major networks – ABC, CBS, NBC and FOX – stated on February 5 that their owned‑and‑operated stations will not switch early, and will wait until June 12. The extent to which affiliate stations and other broadcasters will follow their lead is unclear at this time.
V. RECOMMENDATIONS AND RESOURCES
As the original transition date of February 17 approaches, we expect local government officials be presented with an increasing number of inquiries from citizens on this topic. In addition to sharing information about the delay, as outlined above, we suggest that local officials consider contacting all local broadcasting stations to determine whether any or all of them might intend to shut off analog prior to June 12. In such case, the broadcaster(s) and local government could most effectively prepare area viewers by working together to educate them about timing, ramifications, etc.
In addition, we suggest directing consumer inquiries to the following federal government resources (note, though, that they are unlikely to be updated until President Obama signs the DTV Delay Act into law):
For more information, refer to the federal TV Converter Box Coupon Program website: https://www.dtv2009.gov/