I. INTRODUCTION

Defendants CITY OF HUNTINGTON BEACH (“City” or “Huntington Beach”), City Attorney GAIL HUTTON, and Chief of Police RONALD E. LOWENBERG (collectively “Defendants”) file this memorandum of points and authorities, the attached declarations of James E. Sutton (“Sutton Declaration”) and Robert J. Wheeler (“Wheeler Declaration”) and their evidentiary objections to the October 1, 2002 declaration of Gregg Cunningham, in opposition to the application of Plaintiffs CENTER FOR BIO-ETHICAL REFORM, INC. (“CBR”) and GREGG CUNNINGHAM (“Mr. Cunningham”), CBR’s Executive Director (collectively “Plaintiffs”), for issuance of a preliminary injunction, for the purpose of barring enforcement of Ordinance No. 3578 (sometimes the “ordinance”), an ordinance adopted on September 16, 2002 by the City Council. Ordinance No. 3578, restricts aerial advertising, primarily by tow banner airplanes.

Ordinance No. 3578 added Chapter 9.07 consisting of Sections 9.07.010 to 9.07.030 to the Huntington Beach Municipal Code (“HBMC”). A copy of the ordinance is attached as Exhibit 1 to the Wheeler Declaration.

In order to succeed on their preliminary injunction request, Plaintiffs must show either (a) a likelihood of success on the merits and the possibility of irreparable injury, or (b) the existence of serious questions going to the merits and the balance of hardships tipping in their favor. See S.O.C., Inc. v.

County of Clark, 152 F.3d 1136, at p. 1142 (9th Cir. 1998). There is no need to proceed to the second factor because Plaintiffs cannot possibly meet the first factor.

As will shortly be seen, none of Plaintiffs’ objections to Ordinance No. 3578 have any legal merit. Furthermore, Plaintiffs’ evidentiary showing in support of their legal arguments is meager at best. As a result, Plaintiffs’ preliminary injunction request should be denied.

II. STATEMENT OF FACTS

During 2001 and before, officials and employees of the City investigated numerous citizens’ complaints that banner towing aircraft were excessively noisy. The City found that because the planes were deliberately flying slowly at low altitudes so as to display their banners, coupled with the weight of the banner, the banner-towing aircraft generated more noise than other aircraft. The City Council made findings that these same factors created a safety hazard greater than that posed by other aircraft.

In response to this auditory assault, coupled with concerns for safety and aesthetics (visual blight), the City Council banned banner towing over the City by passing the ordinance at issue here. It should be noted that the findings related to all the banner-towing aircraft and no one particular advertiser was singled out as being more offensive to the senses or unsafe than any other.

Along with commercial advertisers, Plaintiffs engaged in the practice of flying banners. Plaintiffs now claim that this was the only means available to them to communicate their message to City residents (see Plaintiff’s Memorandum of Points and Authorities, p. 1:23-25). Interestingly, after the ordinance was passed, Plaintiffs not only threatened to, but did, employ the use of trucks bearing billboard sized posters as a reasonable alternative means of disseminating their message (see the Wheeler Declaration and Exhibit 4 attached thereto.

III.

ORDINANCE NO. 3578 DOES NOT

VIOLATE THE FIRST AMENDMENT

A. ORDINANCE NO. 3578 IS CONTENT-NEUTRAL AND

REPRESENTS A VALID TIME, PLACE AND MANNER REGULATION

In their moving papers, Plaintiffs conveniently overlook the fact that Ordinance No. 3578 is content neutral. The ordinance’s content neutrality affects the entire discussion of the First Amendment issue and severely limits the basis of Plaintiffs’ attack.

Assuming arguendo that the airspace above Huntington Beach constituted a public fora, and further assuming that Ordinance No. 3578 did not constitute a total ban on aerial advertising, [1] and further assuming that Plaintiffs’ anti-abortion statements represented protected speech, it is Defendants’ position that Ordinance No. 3578 represents a valid “time, place and manner” regulation. As such, the controlling case is Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (“Ward”). In Ward, at issue was an administrative regulation of New York City requiring all performers who used an amphitheater and stage structure (“bandshell”) located in the city’s Central Park, to use sound-amplification equipment and a sound technician provided by the city. The city’s administrative regulation was adopted in response to noise complaints from park users and adjacent residents about excessive sound amplification. See Ward, supra, 491 U.S. at 785-787. The city’s regulation was attacked on First Amendment grounds by the sponsor of a rock concert.

After ruling that music was a form of protected speech, and considering the bandshell to be a public forum, the Supreme Court (Id., at 791) stated: “. . . that even in a public forum the government may impose reasonable restrictions on the time, place and manner of protected speech, provided that the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

/ / /

The Supreme Court in Ward then analyzed these three criteria with respect to New York City’s regulation and upheld it as a valid time, manner and place regulation. See Id., at 791-803. Defendants will employ the same three-part analysis with respect to Ordinance No. 3578 to show that it does not violate the First Amendment.

1. FIRST FACTOR - CONTENT NEUTRALITY

Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of regulated speech. Ward, supra, 491 U.S. at 791. Ordinance No. 3578 is content neutral (see, in particular HBMC §§ 9.07.010(a) and 9.07.020(a), as well as Paragraphs 13 and 14 of the Wheeler Declaration). Under the ordinance, the content of a tow plane banner’s message is irrelevant. In their Brief, Plaintiffs never discuss the provisions of the ordinance with respect to content neutrality. Understandably so, because they must certainly acknowledge that the ordinance is, in fact, content neutral.

2. SECOND FACTOR – SIGNIFICANT GOVERNMENT

INTEREST

The municipal regulation must also be tailored to serve a significant governmental interest that would be achieved less effectively without the regulation.

Ward, supra, 491 U.S. at 796, 798-799. In Ward, the Supreme Court recognized that New York City had a substantial interest in protecting its citizens from

unwelcome noise. In the present case, Huntington Beach has a substantial interest in protecting its residents and visitors from the air pollution, noise, aesthetics (visual blight) and public safety concerns caused by tow banner planes. The City Council so determined when it passed the ordinance (note, in this regard, Section 1 of Ordinance No. 3578; the statement of legislative intent).

3. THIRD FACTOR – ALTERNATE CHANNELS OF COMMUNICATION

The municipal regulation must leave open ample alternative channels of communication. Ward, supra, 491 U.S. at 802. Ordinance No. 3578 also meets this criterion. The ordinance does not represent a total ban on aerial advertising as there are three exceptions [see HBMC §§ 9.07.020(b)(1) – (3)] to the general prohibition found in HBMC § 9.07.020. In addition, skywriting is not covered by Ordinance No. 3578, which Plaintiffs readily acknowledge in their Brief.

And an almost limitless list of other media (e.g., radio, television, newspapers, trucks, billboards, personal contact, signs, pamphlets, flyers, etc.) are available to CBR in which to spread its anti-abortion message. Mr. Cunningham’s August 6, 2002 letter to the City Council (Exhibit 4 to the Wheeler Declaration) clearly illustrates this fact.

Ward’s analysis was recently followed by the Ninth Circuit in the case of Honolulu Weekly, Inc. v. Harris,

298 F.3d 1037 (9th Cir. 2002) (“Honolulu Weekly”). In Honolulu Weekly, the Ninth Circuit upheld the constitutionality of a Honolulu ordinance, against First Amendment and Equal Protection attacks, that required all newspaper publishers who wanted to distribute their publications along sidewalks in the Waikiki Special District to use one of two sets of newsracks – one reserved solely for publications that charge readers and one just for free publications. See Honolulu Weekly, supra, 298 F.3d at 1041-1042.

With regard to the First Amendment issue, the Ninth Circuit, after analyzing the three Ward factors, upheld the Honolulu ordinance as a valid time, place and manner restriction. The court first ruled the Honolulu ordinance was content neutral (Id., at 1044-1045). The court next ruled the Honolulu ordinance was narrowly tailored to serve a significant government interest. In this regard, the Honolulu Weekly court cited Honolulu’s concerns about aesthetics and pedestrian safety. Id., at 1045. And finally, the court ruled that the Honolulu ordinance left open “ample alternative channels of communication.” Id., at 1047.

B. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ ARGUMENTS

Plaintiffs’ First Amendment contentions are found on pages 8-16 of their Brief. Sadly for them, the vast majority of the cases they cite stand for principles of First Amendment law to which Defendants have no objection. There is a total absence of any analysis of

Ordinance No. 3578. Finally, Plaintiffs repeat their same arguments over and over again in their Brief. In spite of these obstacles, Defendants will attempt to respond to what they believe are Plaintiffs’ major arguments. None of Plaintiffs’ arguments, however, have any merit.

On pages 8 and 9 of their Brief, Plaintiffs cite the cases of Perry Education Assoc. v. Perry Local Educators’ Association, Hague v. Committee For Industrial Organization and Schneider v. State for the proposition that the airspace above Huntington Beach constitutes “public fora.” None of these cases stand for this proposition and Defendants know of no such legal authority. It seems to Defendants that “public fora” would constitute a linchpin in Plaintiffs’ First Amendment argument; that is, if they are not expressing their ideas in a public place, the First Amendment is not even implicated.

On pages 9-11 and 13-15 of their Brief, Plaintiffs appear to be arguing that Ordinance No. 3578 represents a total ban on a certain form of speech (Defendants assume aerial advertising). Plaintiffs apparently have not read the Ordinance. There are three exceptions [see HBMC §§ 9.07.020(b)(1)-(3)] to the general prohibition of aerial advertising under HBMC § 9.07.020(a). Furthermore, the Ordinance does not prohibit skywriting, as Plaintiffs themselves acknowledge. In conclusion, the Ordinance does not represent a total ban on anything.

Finally, on pages 9, 11 and 12 of their Brief, Plaintiffs charge that the passage of Ordinance No. 3578, and its effect on Plaintiffs’ pro-life activities, was motivated by the alleged bias of one of the Huntington Beach councilmembers. Plaintiffs are incorrect. The motives of an elected official are irrelevant regarding the constitutionality of a law. See Palmer v. Thompson, 403 U.S. 217, at 224-225,
91 S.Ct. 1940, 29 L.Ed.2d 438. Ordinance No. 3578 passed by a 5-2 vote. The councilmember whom Plaintiffs are accusing of being biased, was one of the five affirmative votes. Subtracting her vote would still result in the ordinance being adopted by a majority vote (that is, four votes) of the full Council. Plaintiffs have not produced any legal authority indicating that the alleged tainted vote of one councilmember somehow taints the collective vote of the entire panel.

IV.

ORDINANCE NO. 3578 IS NOT OVERBROAD

Plaintiffs claim the ordinance is overbroad, but never bother to explain how it is overbroad. Their failure illustrates their lack of understanding of the overbreadth doctrine.

In Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118 (1984), the Supreme Court explained that in order to prove overbreadth, “[t]here must be a realistic danger that the statute itself will significantly compromise

recognized First Amendment protections of parties not before the Court . . . .” 466 U.S. at 801. At issue in Taxpayers for Vincent was a Los Angeles ordinance prohibiting signs on utility poles, fire hydrants, street lamps and the like. The appellee, Vincent, hung his political signs over the crosswires supporting the utility poles. The City removed his signs, just as they removed many commercial signs. Id. at 792-93. The Supreme Court found that there could be no overbreadth because there were no other prohibited signs that were subject to greater protection than Vincent’s own political signs (see Id., at 802).

Similarly, Plaintiffs have identified no message that might be prohibited that is entitled to any greater First Amendment protection than their own anti-abortion message. Consequently, their overbreadth claim must fail.

Following Taxpayers for Vincent was Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480 (2000). Hill also involved abortion opponents. At issue was a criminal statute prohibiting any person from knowingly approaching within eight feet of another person near a health care facility without that person’s consent. At issue in Hill was the speakers’ right to convey a message on the sidewalks and streets, in front of a health care facility, a “quintessential” public forum, against the State’s interest to protect the health and safety of is citizens. Id. at 715. The Supreme Court held that statute was not overbroad.

Turning specifically to the issue of overbreadth, the Court initially noted that the Colorado statute was not an attempt to regulate unprotected activity that implicated protected speech. Instead, “In this case, it is not disputed that the regulation affects protected speech activity; the question is thus whether it is a ‘reasonable restrictio[n] on the time, place, or manner of protected speech.’ Here, the comprehensiveness of the statute is a virtue, not a vice, because it is evidence against there being a discriminatory governmental motive.

Similarly, Ordinance No. 3578 prohibits all tow banner messages, not merely those of Plaintiffs. Its comprehensiveness does not amount to overbreadth and is a “virtue, not a vice.”

The Hill Court further explained that the Colorado statute was not overbroad because it merely regulated “where communications may occur.” Id. at 731. The Supreme Court concluded that where “conduct and not merely speech is involved,” the plaintiffs must demonstrate the regulation’s impact on other speakers must differ from its impact on their own speech.” Id. at 732. In other words, Colorado did not ban anti-abortion speech, it merely prohibited unconsented speech within the “bubble” of a health care facility. Because the prohibition affected other speakers no differently that anti-abortion speakers, there was no overbreadth issue.

Similarly in Huntington Beach, there is no ban on anti-abortion messages. Rather, no messages may be spread by planes towing banners. This prohibition effects Plaintiffs’ anti-abortion message no differently than any other political or commercial speaker. Because there is no differential impact, the Huntington Beach ordinance is not overbroad.

In Taxpayers for Vincent, Los Angeles prohibited posting signs on utility poles in order to suppress visual clutter. To find a First Amendment violation, the plaintiffs needed to show that “the restriction on [their] expressive activity is substantially broader than necessary to protect the City's interest in eliminating visual clutter.” Taxpayers, 466 U.S. at 808. In fact, the Supreme Court concluded the ordinance was a reasonable time, place and manner restriction: “By banning these signs, the City did no more than eliminate the exact source of the evil it sought to remedy.” Id.

The same is true of a prohibition on towing banners. The prohibition eliminates precisely the noise, safety problems and visual blight the City finds objectionable. Consequently, “The ordinance curtails no more speech than is necessary to accomplish its purpose.” Id. at 810. For that very reason, it is not overbroad.

/ / /

ORDINANCE NO. 3578 IS NOT UNCONSTITUTIONALLY VAGUE

Plaintiff’s argument that the ordinance is vague is based on a statement completely lacking in foundation, to wit, that it is difficult to identify the City of Huntington Beach from the air (see Plaintiff’s Memorandum of Points and Authorities p. 18:1-4). If the Court sustains the City’s foundation objection to that portion of Plaintiffs’ declaration, there is not a scintilla of evidence in support of the argument that the ordinance is vague and the claim must fail for lack of proof.

The statement that it is difficult to ascertain locations on the ground while in the air is completely factually inaccurate (see Sutton Declaration, attached). Moreover, even were the Court to find that Plaintiffs might find it “difficult” (Plaintiff’s Memorandum of Points and Authorities, 18:1) to locate themselves while flying, this does not render the ordinance unconstitutionally vague.

As has been Plaintiffs’ practice throughout their argument herein, they site to cases which stand for sweeping principles of law, but which apply in only the most general sense to the facts. The City does not argue for example that the “void for vagueness” doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people of average intelligence can understand what

conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. The void-for-vagueness issue is essentially an issue of notice. As explained by the United States Court of Appeals (9th Circuit) in U.S. v Vasarajs, 908 F.2d 443 (9th Cir. 1990):

“The void-for-vagueness doctrine springs from the legality principle (citation omitted) and effectively holds that the very words of statutes must be sufficiently precise to provide comprehensible notice to average citizens of the substance of the rules that bind them . . . Yet just as the legality principle itself is satisfied by the existence of codified rules that can be sought out and read by enterprising citizens, so too the void-for-vagueness doctrine appears to be satisfied if the words of a statute ‘suggest[]the need to seek legal advice and if the statute’s meaning might reasonably be determined through such advice.’ . . . In short, due process does not require that citizens be provided actual notice of all criminal rules and their meanings.” Id., at 449.

The Vasarajs case, supra, is particularly illustrious, in that it involves the same claim as before the Court here; that if one claims that he or she cannot figure out the precise boundaries of an area, and is faced with applying to oneself a law that requires awareness of an area so as to avoid entry into it, that law is unconstitutionally vague. The 9th Circuit made clear that the quite the opposite is true. Quoting again from the Varsarajs Court:

“Extrapolating from the legality principle and the void-for-vagueness doctrine, we agree that due process requires that there have been some way for Vasarajs to learn the boundary of the Fort. But this probably does not mean that the government had to provide actual notice to Vasarajs. The possibility that an official description of the Fort’s geographical boundaries was available to Vasarajs had she made inquiry of the government, would likely satisfy the dictates of due process.” Id. (emphasis added).

In Vasarajs, the Court found no constitutional infirmity even with the mere “possibility” that there existed an official description of the circumscribed area. In this case, common sense tells us that there exists maps and charts of the City’s boundaries. It is possible for even a very inexperienced pilot to use maps, charts and other navigational aids to gauge his or her location (see Declaration of James E. Sutton). (See also PPC Enterprises, Inc. v. Texas City (1999) and

Gannett Satellite Information Network, Inc. v. Township of Pennsauken (1980) 709 F.Supp. 530, at 541 for cases that reiterated that restricted area laws are not vague even if it is difficult to ascertain the area in question.

Pilots receive training in how to locate their position while airborne (see Declaration of James E. Sutton). Over City’s foundation objection, Plaintiffs state that pilots of the banner-towing craft use visual flight rules. “Visual flight rules” is not defined, so we can only assume it means that the pilot must look for landmarks in order to navigate.

If pilots are able to use visual flight navigation, it has to be an effective means of gauging position. Were it not, visual flight rules and visual navigation would be a completely useless tool. Courts will not find statutes facially vague and overbroad when a limiting construction can be placed on it so as to eliminate the seeming threat to constitutionally protected speech (Broadrick v. Oklahoma (1973) 413 U.S. 601; 93 S.Ct. 2908). “A statute will not be held void for uncertainty if any reasonable and practical construction can be given its language [citations]. If by a fair and reasonable interpretation we can construe [a statute] to sustain its validity, we must adopt such interpretation” (Pryor v. Municipal Court (1979) 25 Cal.3d 238; 158 Cal.Rptr. 330).

/ / /

In Wright v. New Jersey, 469 U.S. 1146, 1152 (1985), the Court said:

“Where the provision is vague not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all, it is unconstitutional.”

Here we have a completely ascertainable, specific standard: the physical boundaries that constitute that certain area known as the City of Huntington Beach. As to Plaintiffs’ claim of vagueness because of arbitrary enforcement, what needs to be shown, in order for an ordinance to survive a challenge on that ground, is that the legislative body has established “minimal guidelines” to govern law enforcement. Smith v. Gougen, 415 U.S. 566, 574 (1974). The boundaries of the City are what guide City police, both in radio cars and in the helicopters, telling them where they may and may not enforce local ordinances and in fact where their jurisdiction is. The boundaries of the City, are not “minimal” guidelines, they are detailed, specific, easily ascertainable, physical standards which not only “guide” law enforcement, but strictly circumscribe the area in which they are hired to enforce the law.

/ / /

VI.

Ordinance No. 3578 Does Not Violate The Commerce Clause

On pages 20 and 21 of their Brief, Plaintiffs argue that the ordinance violates the Commerce Clause because it places an undue burden on interstate commerce in that the City is attempting to regulate the travel and free flow of commerce through the navigable airways; allegedly because adoption of the ordinance will create a patchwork of local ordinances which in the aggregate, will significantly impair interstate commerce. In support of this nebulous contention, Plaintiffs rely on Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources, 504 U.S. 353, 112 S.Ct. 2019, 119 L.Ed. 2d 139 (“Fort Gratiot”), and Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 2d 329 (“Dean Milk”).

At the outset, Plaintiffs appear to be contradicting themselves. On page 2 lines 9 to 10, as well as on page 8, lines 3 to 7 of their Brief, Plaintiffs state that their tow banners are not solicitations or commercial advertisements, but rather political speech. In other words, Plaintiffs inform the Court that they are not engaged in any type of commercial activities. If their activities are not commercial in nature then Plaintiffs have no business raising the Commerce Clause issue in the first place.

The “negative” or “dormant” aspect of the Commerce Clause prohibits states from advancing their own

commercial interests by curtailing the movement of “articles of commerce”, either into or out of the state.

Fort Gratiot, supra, 504 U.S. at 359. Plaintiffs deal with “ideas”; that is, pro-life messages. These ideas do not represent an “article of commerce”. In Fort Gratiot, the court held that solid waste, even if it had no value, represented an article of commerce. Id., at 359. In Dean Milk, 340 U.S. 349, at 353, the articles of commerce were milk and milk products. In Fort Gratiot, the court struck down a state law that prohibited privately owned landfill operators from accepting solid waste from outside the county in which they were situated. In Dean Milk, the court struck down a city ordinance that made it unlawful to sell any milk as pasteurized unless it had been processed at a plant within a radius of five miles from the city’s central square. The Fort Gratiot and Dean Milk cases are not remotely relevant to this case.

According to Paragraph 16 of the Cunningham Declaration, if coastal cities adjacent to Huntington Beach adopted similar ordinances, aircraft pilots (presumably towing banners) would have to change altitude and direction every time they crossed a border, thereby burdening CBR’s speech activities. As stated earlier, and as Mr. Cunningham acknowledges, Plaintiffs deal in (pro-life) ideas. These ideas are not “articles of commerce” thereby triggering the Commerce Clause. The court should reject this far-fetched argument.

VII.

ORDINANCE NO. 3578 IS NOT PREEMPTED

As they must, Plaintiffs acknowledge that the recent decision of the 9th Circuit in Skysign Int’l, Inc. v Honolulu, 276 F.3d 1109 (9th Cir. 2002) ruled that local jurisdictions, whether under federal law or Federal Aviation Administration regulations, are not preempted from regulating aerial advertising. Despite the fact that the Huntington Beach ordinance is nearly identical to that of Honolulu (the subject of the Skysign case), they attempt to distinguish Skysign by stating that Southern California is different because there exists a danger of a proliferation of local ordinances that would cause air safety problems. As appears to be typical of most of Plaintiffs’ arguments herein, the argument is without any foundation or factual support. Do we know that Pearl City, Barber’s Point, or other suburbs of Honolulu are not incorporated or otherwise capable of enacting their own ordinance? What about regulatory authority over the various state and federal parks that surround Honolulu, if they exist? Without providing evidence that there is, in reality, a distinction between the two states such that there could or could not be differing local ordinances, the City submits that Plaintiffs cannot make the argument. Similarly, there is no evidence that a proliferation of local ordinances would create a safety hazard. Plaintiffs have the burden of proof; a bald unsupported statement is insufficient to meet their burden and should be disregarded.

As a legal matter, the fact that there could be neighboring jurisdictions with differing ordinances is irrelevant. The essence of the holding in Skysign may be summed up by a quote from the Court:

“Skysign’s argument that local regulation is displaced in the absence of any contradictory federal provision requires a demonstration that Congress has so completely occupied the field that federal silence is itself a policy choice rather than a mere passive deferral to local authority. We conclude that Congress itself has made no such decision . . . We also conclude that the FAA has not exerted its statutory authority to a degree that warrants a holding that it has preempted the entire field.” Id., at 1116.

Nowhere in Skysign was the lack of neighboring jurisdictions with conflicting local bans on advertising discussed by any of the parties or the Court. Nowhere does the Court even discuss the fact (if it is one) that Honolulu controls the entire area’s airspace. In short,

the Skysign decision was not in any way based upon the fact that there were or were not potential conflicting ordinances. That not having played a role in the decision, the situation here is indistinguishable.

Because the City Council made findings that the banner towing aircraft generated more noise and flew at lower altitudes than other aircraft, Plaintiffs argue that the ordinance is regulating airplane noise and is thus preempted under City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973). The Court need do no more than to read the ordinance; by its terms it regulates aerial advertising and nothing more. Unlike the Burbank ordinance that banned flight between certain hours, this case does not regulate flight. Plaintiffs are confusing the findings which the regulation is based upon and the regulation itself. For example, if a clean harbor user fee is adopted, based upon a finding that the harbor water is polluted and the fee is needed to clean it, the City would not be regulating the polluted water (the finding) it would be regulating those who use it (the fee ordinance).

Finally, Skysign cannot be distinguished on the basis that the City ordinance targets, among other things, the concern that the banner towing planes could do damage to persons and property on the ground instead of targeting motorists who might be distracted by the banners. Safety is a legitimate public concern in either case. The justification for the ordinance may be different than

that of Honolulu, but it does not mean that Huntington Beach is regulating in a preempted field. The ordinance itself mirrors the one upheld by the 9th Circuit.

/ / /

VIII. ORDINANCE NO. 3578 DOES NOT VIOLATE THE

EQUAL PROTECTION CLAUSE

Citing the cases of Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (“Mosley”) and Carey v Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (“Carey”), Plaintiffs argue that Ordinance No. 3578 impermissibly prohibits their pro-life speech activities in violation of their equal protection rights under the Fourteenth Amendment.

Even assuming, as do Plaintiffs, that the airspace above Huntington Beach constitutes public fora, Plaintiffs’ contention fails. The Mosely and Carey cases are clearly distinguishable from the present case. In Mosley, the Chicago ordinance in question created two classifications of picketing: (1) picketing within a certain area of school sites which was prohibited; and (2) peaceful school labor picketing which was lawful. The Supreme Court (408 U.S. at 95) held that the central problem with Chicago’s ordinance was that it described permissible picketing in terms of subject matter. The court held (Id., at 96) that under both the First Amendment and Equal Protection Clause, government may not grant the use of a forum (areas around school sites) to people whose views it finds acceptable, but deny use

to those wishing to express less favored controversial views. Unlike the local ordinance at issue in the Mosley case, the Huntington Beach ordinance at issue in this case is content neutral.

In Carey, the Illinois state statute in question barred picketing of residences or dwellings but permitted the peaceful picketing of a place of employment involved in a labor dispute. See 447 U.S. at 457. The Supreme Court, ruling that its earlier Mosley decision was controlling, struck down the Illinois statute on both First Amendment and Equal Protection grounds for the same reason; specifically that the statute regulated the content of speech in that labor picketing was lawful but non-labor picketing was unlawful. Id., at 461-463.

The earlier cited Honolulu Weekly case further supports Defendants’ position, as well as the validity of Ordinance No. 3578. In Honolulu Weekly, the Ninth Circuit upheld, against First Amendment and Equal Protection attacks, a Honolulu ordinance that required all newspaper publishers who wished to distribute their publications along sidewalks in the Waikiki Special District to use one of two sets of newsracks – one reserved solely for publications that charge readers and one only for free publications. The Ninth Circuit, having determined that the ordinance was content-neutral and that it did not infringe upon a fundamental right, then applied the rational basis test (that is, whether the ordinance was rationally-related to a legitimate governmental interest).

The court (298 F.3d at 1048) found that the objects of the ordinance (improving safety and aesthetics) were

substantial governmental interests; that the ordinance was a rational attempt to achieve these interests; and consequently that the ordinance did not offend the Equal Protection Clause.

The same is true with respect to Ordinance No. 3578. It is content-neutral, treats everyone alike, does not burden the exercise of a fundamental right, and represents a rational attempt on the City’s part to address the local concerns of air pollution, public safety, noise and aesthetics caused by tow banner advertising planes. Under the rational basis test, Ordinance No. 3578 simply does not violate the Fourteenth Amendment’s Equal Protection Clause. And Plaintiffs have not remotely come close to citing any relevant cases to the contrary.

IX. CONCLUSION

The right to communicate is not limitless. Carey, supra, 447 U.S. at 470. Plaintiffs seem to think that it is. Both legally and factually, Plaintiffs’ lawsuit falls far short of the mark and their preliminary injunction request should be denied.

Dated: October ____, 2002 Respectfully submitted,

By: ____________________

SARAH LAZARUS

Deputy City Attorney

Attorneys for Defendant

CITY OF HUNTINGTON BEACH

EVIDENTIARY OBJECTIONS TO DECLARATION OF GREGG CUNNINGHAM

Defendants CITY OF HUNTINGTON BEACH, GAIL HUTTON, and RONALD E. LOWENBERG submits the following evidentiary objections to the declaration of GREGG CUNNINGHAM dated October 1, 2002, filed by Plaintiffs CENTER FOR BIO-ETHICAL REFORM, INC. and GREGG CUNNINGHAM, on the following grounds:

Objectionable Statement Grounds for Objection

1. Page 2, lines 11-12 ((¶2):

“I am also a licensed private pilot and a former aircraft owner.”

FRE 702: Testimony by Experts

No evidence of his knowledge, skill, experience, training, or education was submitted which will qualify him as an expert witness.

2. Page 4, lines 4-6 (¶9):

“The ARCC is CBR’s most effective way to express its pro-life message in the City of Huntington Beach, because CBR has been denied access to all

major media outlets in this area.”

FRE 602: Lack of Personal Knowledge (Lacks foundation).

FRE 801: Hearsay.

No evidence was introduced which demonstrates CBR has attempted to access other major media outlets, or that such attempts were denied.

3. Page 4, lines 6-9 (¶9):

“Additionally, the ARCC is the most cost effective means for CBR to express its pro-life message to its target audience, the demographic that includes the highest percentage of persons of reproductive age.”

FRE 602: Lack of Personal Knowledge (Lacks foundation).

FRE 801: Hearsay.

No evidence was introduced that the ARCC is any less expensive than any other means of reaching their target audience.

4. Page 4, lines 15-17 (¶10):

“There are no alternative means of communication available to CBR in the City of Huntington Beach that would adequately permit CBR to express its pro-life message.”

FRE 602: Lack of Personal Knowledge (Lacks foundation).

FRE 801: Hearsay.

Constitutes argument and legal conclusion, not fact.

No evidence was introduced to demonstrate there are no other alternative means of communication available. The definition of “adequate” is for the court to determine.

5. Page 4, lines 17-19 (¶10):

“Moreover, I know from personal knowledge and experience that aircraft have been towing banners within or above the boundaries of the City of Huntington Beach for at least 30 years.”

FRE 602: Lack of Personal Knowledge (Lacks foundation).

The declarant offers no factual basis for his purported familiarity with the banner towing practices within or above the City of Huntington Beach for the past 30 years.

6. Page 5, lines 5-7 (¶12):

“Huntington Beach City Council Member Pam Houchen has publicly stated that a reason for enacting this ordinance was to prevent CBR from displaying its pro-life aerial banners in public.”

FRE 602: Lack of Personal Knowledge (Lacks foundation).

The declarant offers no factual basis for his purported familiarity of the alleged statements made by Council Member Houchin, or knowledge of what her reason for voting on the ordinance was.

7. Page 5, lines 7-9 (¶12):

“According to Council Member Houchen, by displaying the pro-life banners, ‘[CBR has] gone one step too far.’”

FRE 801: Hearsay.

This is an out of court statement offered for the truth of the matter asserted.

8. Page 5, lines 10-14 (¶12):

“Moreover, CBR has received large numbers of phone calls from angry observers claiming that they intend to complain about CBR’s banners to government officials and demand that the government take action to stop the public display of CBR’s banners.”

FRE 602: Lack of Personal Knowledge (Lacks foundation).

FRE 801: Hearsay.

Declarant fails to provide facts that demonstrate a nexis between the phone calls and the legislative intent of the ordinance.

9. Page 6, lines 3-5 (¶14):

“The Huntington Beach Ordinance will likewise cause a commensurate increased safety risk for CBR and the pilots it employs.”

FRE 602: Lack of Personal Knowledge (Lacks Foundation).

Declarant has not offered any factual evidence to support this improper claim. Furthermore, declarant has not established himself as an expert.

10. Page 6, lines 6-15 (¶15):

“The single-engine aircraft typically employed to tow CBR’s aerial banners are not equipped with sophisticated navigational aids. The pilots flying these aircraft do so using Visual Flight Rules. That is, the pilots fly using visual cues rather than relying primarily on instruments, and they are not under positive air traffic control until they reach a terminal control area. This, coupled with the difficulty in accurately identifying precise city boundaries from the air, make it

practically impossible

for a tow pilot to know with certainty when his aircraft has actually entered within or above the boundaries of the City of Huntington Beach. Therefore, CBR, as well as law enforcement below, will be incapable of knowing with certainty when the Huntington Beach Ordinance is being violated.”

FRE 702: Testimony by Experts

FRE 602: Lack of Person Knowledge (Lacks Foundation).

No evidence of his knowledge, skill, experience, training, or education was submitted which will qualify him as an expert witness.

Declarant has not offered any evidence indicating what type of instrumentation the tow pilots use to navigate the airways.

Declarant has offered no evidence to substantiate his improper claim that tow pilots, and law enforcement officers, will not know when the Huntington Beach Ordinance is being violated.

11. Page 6-7, lines 20-2 (¶16):

“Based upon information and belief, Laguna Beach, California, Manhattan Beach, California, and Newport Beach, California, among others, are considering drafting bans similar to the Huntington Beach Ordinance. This will cause a patchwork of local laws that would force the aircraft pilots to change altitude and direction every time they cross borders thereby creating additional burdens on and

safety risks for CBR’s speech activities.”

FRE 702: Testimony by Experts

FRE 602: Lack of Personal Knowledge (Lacks Foundation).

Declarant has not offered any factual evidence to support this improper claim. Furthermore, declarant has not established himself as an expert. Furthermore, this is mere speculation.

12. Page 7, lines 7-11 (¶17):

“Based on my personal observations, the vehicular traffic along the coastline of Huntington Beach and the maritime traffic, such as jet-skis and other watercraft, off the shore of the beaches of the City of Huntington Beach are a far greater source of noise and pollution than the single-engine plane crashes into populated areas of the City of Huntington Beach.”

FRE 702: Testimony by Experts

FRE 602: Lack of Personal Knowledge (Lacks Foundation).

Declarant has not offered any factual evidence to support this improper claim. This is speculation, conjecture, and lacks foundation.

13. Page 7, lines 12-14 (¶17):

“To date, upon information and belief, there have been no reported single-engine plane crashes into populated areas of the City of Huntington Beach.”

FRE 602: Lack of Personal Knowledge (Lacks Foundation).

Declarant has offered no foundation for this claim.

Dated: October ____, 2002 Respectfully submitted,

GAIL HUTTON, City Attorney

By: ____________________

SARAH LAZARUS

Deputy City Attorney

Attorneys for Defendant CITY OF HUNTINGTON BEACH

DECLARATION OF JAMES E. SUTTON

I, JAMES E. SUTTON, declare as follows:

1. I am over 18 years of age and not a party to this action. The following facts are of my own personal knowledge and if called and sworn as a witness, I could and would competently testify under oath thereto.

2. I am licensed by the Federal Aviation Administration (FAA) as a “Private Pilot, Single Engine Land.”

3. I am qualified and licensed to fly single engine fixed wing aircraft similar to the aircraft commonly utilized for the towing of banners. My training includes successful completion of a required FAA approved flight training program consisting of direct training by FAA qualified flight instructors, ground school and “hands-on” operation of small aircraft. I am a relatively low time pilot having approximately 200 hours of pilot experience.

4. Based upon my training and experience, I am aware of the various means and techniques utilized by pilots to determine their positions while operating small aircraft under FAA Visual Flight Rules (VFR).

5. In order to comply with a variety of airspace restrictions and safe operation of aircraft operating under VFR, all pilots, including those who tow banners, are required by the FAA to be aware of their locations. In fact, no qualified flight instructor would allow a student pilot of his or hers to take the FAA examination to become a private pilot unless that student is able to determine his or her location while in the air.

6. Prior to taking to the air as pilot in command of an aircraft, it is incumbent upon all pilots to determine whether or not there are any areas of restricted airspace along or near the intended route(s) to be flown.

7. Based on my personal training and experience in flying VFR in the airspace over and near to Huntington Beach, California, I am aware of landmarks which include, in part, the Pacific Ocean, beaches parks, waterways, highways, freeways, schools and other structures, located at or near the borders of Huntington Beach, which would permit any FAA licensed pilot (other than Student Pilot) legally operating an aircraft under VFR, regardless the level of skill, to determine his or her location accurately enough to avoid or circumvent the airspace over Huntington Beach.

8. Because of my training and experience in navigating my position while operating aircraft under VFR, I am aware that a reasonable pilot, using relatively simple rules of navigation and navigational aids (visual observations of landmarks on the ground, maps, charts, radio communication with FAA radar facilities, required onboard instrumentation, and optional instrumentation such as GPS) would be able to determine his or her position with reference to the City of Huntington Beach. In fact, the Huntington Beach Pier is a reporting point for the Orange County Airport and appears on the Class B VFR Chart, which is required by the FAA to be on every banner towing aircraft over Huntington Beach.

9. If I, as a licensed pilot, am confused about my location relative to Huntington Beach, I can contact a nearby FAA facility by way of radio, and receive assistance in determining my position. I am able to testify to this, having been trained by FAA certified instructors and having used radio assistance provided by control towers and other FAA facilities in determining my location.

10. An additional means of determining the areas restricted to banner towing is to first fly over the area in question, without a banner, in order to familiarize oneself with existing landmarks and circumstances relative to other navigational aids.

11. As a result of my training and experience, I am aware that a reasonable pilot can calculate his or her position based upon the distance between an airport (or other starting point) to Huntington Beach, the indicated airspeed, the compass heading of the aircraft, and the direction and velocity of the wind.

/ / /

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this______ day of ____________ 2002 at Huntington Beach, California.

__________________________

JAMES E. SUTTON

DECLARATION OF ROBERT J. WHEELER

I, ROBERT J. WHEELER, declare:

1. I make this declaration pursuant to 28 U.S.C.

§ 1746, which declaration is based on my personal knowledge.

2. I serve as Special Counsel to the City of Huntington Beach (“City” or “Huntington Beach”) pursuant to a professional services contract with the City. I was admitted to the practice of law in the State of California in January of 1971, and have practiced law continuously in this state since that time. I am a career municipal law attorney, having been a former City Attorney and, from March of 1981 until I retired in December 30, 1997, was the chief trial and appellate court attorney, in both state and federal courts, for the City of Santa Ana. I have been Special Counsel to the City since August of 1998.

3. I am executing this declaration as part of Defendants’ opposition to the request of Plaintiffs CENTER FOR BIO-ETHICAL REFORM, INC. (“CBR”) and GREGG CUNNINGHAM (“Mr. Cunningham”) (collectively “Plaintiffs”) for issuance of a preliminary injunction barring the enforcement of City Ordinance No. 3578.”

4. A copy of Ordinance No. 3578 showing its execution by the City’s Mayor and other officials, is attached to this declaration as Exhibit 1 and incorporated herein by reference. In all, there are four separate exhibits to my declaration, all of which

are incorporated herein by reference.

5. I personally drafted Ordinance No. 3578. I also did all of the background staff work and performed the necessary legal research. In performing my work and in preparing this declaration, I reviewed all existing, relevant documents that were contained in the City Attorney’s Office’s files concerning this ordinance, and I also collected additional relevant documents and reviewed them before placing them in such files.

6. For a number of years prior to January of this year, many City residents had either contacted the City in writing, or appeared at City Council meetings, complaining about the presence of low flying airplanes over the City, including tow banner planes, and wanting to know if the City had the ability to do something about it. These complainants cited concerns about air pollution, noise, aesthetics and dangers from possible plane crashes. In fact, during 1998 and 1999, the City Attorney’s Office drafted three opinions on the issue of low flying airplanes. These opinions indicated that jurisdiction over such low flying planes was vested with the Federal Aviation Administration (“FAA”).

7. Things changed dramatically in January of 2002. At that time, we learned that the Ninth Circuit Court of Appeals, in the then recent case of Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109 (9^th Cir. 2002) (“Skysign”), had upheld a Honolulu ordinance restricting aerial advertising;

aerial advertising, in our minds, constituting a related

issue to low flying planes. In Skysign, the federal appellate court upheld the Honolulu ordinance against an attack that was preempted by federal aviation law and the FAA’s regulations. On January 18, 2002, this office provided the mayor and Councilmembers with a copy of the Skysign decision, and indicated that, pursuant to previous Council direction, the City Attorney’s office would be preparing an appropriate ordinance for Council consideration. The matter was then assigned to me by City Attorney Gail Hutton (“Ms. Hutton”).

8. I thereafter contacted appropriate Honolulu officials and, on March 11^th of this year, was sent a copy (attached Exhibit 2) of the Honolulu ordinance at issue in the Skysign case. I used this ordinance as a model in drafting Ordinance No. 3578.

9. By memorandum dated April 12, 2002, we (that is, the City Attorney’s Office) provided the City Council with a copy of a proposed Huntington Beach ordinance restricting aerial advertising, along with a background report and other pertinent materials.

10. On July 9, 2002, Councilmember Connie Boardman, in writing, raised, with the full City Council, the issue about the feasibility of adopting such an ordinance, and received a positive response from the Council. On July 9th, the Council referred the matter to this office for a final legal review and preparation of a background report discussing a host of legal and practical issues.

11. I then revised the ordinance and prepared the background report referred to immediately above, along with a Request for Council Action (“RCA”).

12. On September 3, 2002, the Council gave a first reading to and introduced Ordinance No. 3578. On September 16, 2002, the Council gave a second reading to and adopted Ordinance No. 3578. The ordinance became effective on October 16th. A copy of the RCA, and its attachments, including the ordinance itself, along with the City Attorney’s final August 29, 2002 report which I prepared, is attached hereto as Exhibit 3. The ordinance added Chapter 9.07, consisting of Sections 9.07.010 to 9.07.030, to the Huntington Beach Municipal Code.

13. As I stated earlier, I used the Honolulu ordinance as a model in drafting the Huntington Beach ordinance. I added “SECTION 1. Statement of Legislative Intent” to the Huntington Beach ordinance. I created a new “Definitions” Section [Huntington Beach Municipal Code (“HBMC”) § 9.07.010. HBMC § 9.07.010(b) was taken from the Honolulu ordinance but subsections (a) and (c) are new. In HBMC § 9.07.020(a), I added the phrase “. . . or cause to be operated or used, . . .” to insure that the pilots of banner tow planes, the owners of these planes, as well as the advertisers on the banners, all fell within the ambit of the ordinance. Otherwise, this section is identical to Section 40-6.1(a) of the Honolulu ordinance. In HBMC

§ 9.07.020(b)(3), I substituted reference to Huntington Beach’s zoning ordinance instead of the reference to Honolulu’s zoning ordinance. And I added HBMC § 9.07.030, concerning penalties for a violation of the ordinance’s provisions.

14. Concerning myself with the First Amendment issue, an issue that was not litigated in the Skysign case, I wanted to make sure that Ordinance No. 3578 was “content neutral.” Under the ordinance, it makes absolutely no difference as to the content of the message on a banner being towed by a plane. It is irrelevant whether that message is commercial, political, religious, educational or personal. To insure “content neutrality,” I added the definition of “advertising” found in HBMC § 9.07.020(a), fearing that the word “advertising,” in a vacuum, might connote “commercial speech.”

15. As the drafter of the law in question, I want to convey to both the Court, and to Plaintiffs, that the existence of CBR, and its anti-abortion stance and mission, had absolutely nothing to do with my approximately eight months of legal work on this matter. At no time did any member of the City Council, or Ms. Hutton, ever tell me that a purpose of the ordinance was directed to the activities of CBR, or to thwart its work.

16. I am, however, aware of a threatening letter Mr. Cunningham (attached Exhibit 4) on behalf of CBR,

wrote to the City Council on August 6, 2002. I cannot tell the Court precisely when I first saw this letter, but it was sometime in early September of this year. Two things impressed me after I read it. First, CBR’s position was sadly based on a totally erroneous premise; that is, that a newspaper report had apparently stated that the ordinance was aimed at CBR’s activities. And second, that many other avenues of communication were available to CBR, other than aerial advertising, in order to reach people with its message.

17. In terms of the issue of alternative means of communication available to CBR, I was recently informed by a Huntington Beach resident, the married mother of four children, the oldest of whom attends Marina High School, that from approximately September 10th to October 10th of this year, anywhere from one to three CBR cargo trucks, displaying large pictures of aborted fetuses on their sides, on a daily basis during the weekdays, drove slowly around the streets bordering this high school, displaying the pictures of these fetuses. This action on CBR’s part is consistent with one of the threats outlined in Mr. Cunningham’s letter.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this______ day of ____________ 2002 at Huntington Beach, California.

__________________________

ROBERT J. WHEELER

[1] In Section III.B of this brief, Defendants will be arguing that the airspace above the City does not constitute a public fora, and that Ordinance No. 3578 does not represent a total ban on aerial advertising.

TABLE OF CONTENTS

Page

ORDINANCE NO. 3578 DOES NOT

VIOLATE THE FIRST AMENDMENT

ORDINANCE NO. 3578 IS NOT UNCONSTITUTIONALLY VAGUE

DECLARATION OF JAMES E. SUTTON

DECLARATION OF ROBERT J. WHEELER

ROBERT J. WHEELER

PROOF OF SERVICE OF PAPERS