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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of Skagway v. Robertson (09/22/2006) sp-6046
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CITY OF SKAGWAY, | ) |
| ) Supreme Court Nos. S- 11702/11741 | |
| Appellant/ | ) |
| Cross-Appellee, | ) Superior Court No. |
| ) 1JU-03-00532 CI | |
| v. | ) |
| ) O P I N I O N | |
| TERRY ROBERTSON, d/b/a | ) |
| SKAGUAY TOUR COMPANY, | ) No. 6046 - September 22, 2006 |
| and DAVID A. LEE, d/b/a | ) |
| SOUTHEAST TOURS, | ) |
| ) | |
| Appellees/ | ) |
| Cross-Appellants. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Larry C. Zervos, Judge.
Appearances: Robert P. Blasco and Amy Gurton
Mead, Robertson, Monagle & Eastaugh, Juneau,
for Appellant and Cross-Appellee. Robert S.
Spitzfaden, Gruening & Spitzfaden, APC,
Juneau, for Appellee and Cross-Appellant
Robertson. Philip M. Pallenberg, Faulkner
Banfield, P.C., Juneau, for Appellee and
Cross-Appellant Lee. James N. Leik, Perkins
Coie LLP, Anchorage, and Paul F. Eckstein,
Timothy J. Franks, and Christopher S.
Coleman, Perkins Coie Brown & Bain P.A.,
Phoenix, Arizona, for Amicus Curiae City of
Sedona, Arizona.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
In May 2003 the City of Skagway adopted a municipal
ordinance directed solely to the regulation of the time, place,
and manner of certain limited forms of commercial speech.1 In
order to curb the proliferation of aggressive sales tactics aimed
at pedestrians and tourists and to preserve the historic
character of the town, the ordinance confines person-to-person
solicitation activities within the historic district of Skagway
to enclosed structures or to areas containing at least 200 square
feet of vending space.2 Appellants Terry Robertson and David
Lee, operators of tour companies in Skagway which utilize off-
premises solicitation, challenged the ordinance in the superior
court as unconstitutional. The superior court determined that,
although the ordinance was an appropriate way to restrict
commercial speech, its sweep is so broad that it impermissibly
affects protected speech as well. Because we believe that the
ordinance can be construed in a manner which limits its
application to commercial speech, we reverse.
II. FACTS AND PROCEEDINGS
A. Facts
Appellants David Lee and Terry Robertson both sell
tours to visitors to Skagway. Robertson characterizes his sales
strategy as outcry, which works by sales persons stationed near
City sidewalks approaching pedestrians located on or near City
sidewalks, describing the various tours available and convincing
the pedestrians to purchase a tour. Lee has rented locations
along Broadway, the main commercial street in Skagway, to sell
his tours, but does not characterize his business as off-premises
canvassing.
The City of Skagway passed Municipal Code Ordinance
5.20.010 in May 2003. The ordinance was passed
[b]ecause of the proliferation of . . . off-
premises solicitation . . . and the fact that
the volume of such activities has resulted in
complaints by pedestrians and tourists about
the aggressive and persistent actions of such
persons attempting to engage them in a
conversation in order to consummate a
business transaction[.][3]
It was intended that the ordinance preserve and protect the
unique charm and small town character of the Historic District,
which serves as a major attraction to thousands of tourists every
year.4
The ordinance specifies that it is
directed solely to the regulation of the
time, place, and manner of certain limited
forms of commercial speech with the general
goal of requiring that person-to-person
solicitation activities in the Historic
District . . . be confined to enclosed
structures or on the actual business premises
of the soliciting entity. [It] is not
intended to regulate any form of speech other
than speech designed to do no more than
propose a commercial transaction.[5]
Off-premises canvassing (OPC) is defined as
person-to-person efforts solely intended to
interest pedestrians in or solicit the
participation of pedestrians in commercial
transactions for private profit with a
business, except when done entirely within an
enclosed structure.[6]
The ordinance provides that no person shall engage in OPC within
the Historic District except in enclosed structures and areas
limited to 200 square feet in size and not so situated as to
cause sidewalk obstructions, impede traffic, or interfere with
traffic lines of sight.7 The term business within the definition
of OPC is defined as any commercial activity in which any goods,
services, tours, or edibles are sold or offered for sale.8
B. Proceedings
This appeal stems from two distinct superior court
proceedings. Appellant Lee filed a complaint alleging that the
ordinance was unconstitutional under the federal and Alaska
constitutions. Appellant Robertson filed a separate complaint
alleging that the ordinance violated the federal constitution.
The cases were consolidated before Superior Court Judge Larry C.
Zervos. Robertson filed a motion for summary judgment, claiming
that his right to commercial speech under the federal
constitution was violated. Lee joined in Robertsons motion and
filed his own motion for summary judgment on overbreadth, which
Robertson in turn joined in. Skagway filed a cross-motion on the
plaintiffs commercial speech challenge, and a motion to dismiss
the plaintiffs federal overbreadth claims.
On July 4, 2004, the superior court issued an order
deciding all pending summary judgment motions. The superior
court determined that the ordinance was a valid regulation of
commercial speech under the test articulated by the United States
Supreme Court in Central Hudson Gas & Electric Corporation v.
Public Service Commission of New York.9 It reasoned that the
interest of Skagway in protecting citizens from disturbances and
obstructions on city streets and sidewalks was well supported by
the record and directly connected to the ordinance. Further, it
found the ordinance to be a reasonable fit between the ends and
the means chosen to accomplish the ends.
The superior court then addressed the argument of
Robertson and Lee that the ordinance impermissibly impacts
protected, non-commercial speech, and subjected the ordinance to
an overbreadth analysis. It found that the ordinance, which
defines the term business as any commercial activity in which any
goods, services, tours, or edibles are sold or offered for sale10
actually prohibits the sale of anything on public streets and
sidewalks in the central business area of Skagway. The superior
court concluded:
No matter what the prefatory language or the
explanatory language used by the drafters is,
the operative language means that not only is
the sale of tours or tacos prohibited but so
is the sale of newspapers, bibles, books,
art, and any other expressive item that might
be sold for a profit.
The superior court explained:
The ordinance has a legitimate purpose to the
extent it regulates commercial transactions.
But as long as the plain language of the
ordinance prohibits activity that involves
protected speech, it is substantially
overbroad.
The superior court then noted that, even if the ordinance was
overbroad, it could be upheld if a limiting construction could
avoid constitutional problems. However, the superior court
declined to read the statute in a limited manner, reasoning:
If the Citys concern was limited to the
outcry sale of tours in the historic area, it
should be a relatively straightforward job to
restrict this activity in any number of ways.
After all, this is clearly commercial
activity and does not usually invoke
protected speech. But the City seems intent
on regulating far more than just the outcry
tour sales. Given this intent, the only
permissible ordinance would be one with
significant exceptions to reduce the reach of
the ordinance into protected areas. This is
not something that can be done by striking a
portion of the ordinance or adding a missing
word or phrase. Crafting appropriate
exceptions will take careful drafting,
balancing of interests and selection of
appropriate methods. This is legislative
work best reserved for the City Assembly, not
for the court.
The superior court also found that the ordinance was not a
reasonable time, place, and manner restriction, emphasizing that
it did not deem the ordinance to be narrowly tailored because
[i]t is a blanket ban on sales in a public forum no matter what
is being sold. Skagway filed a motion for reconsideration, which
the superior court denied.
Skagway appeals, arguing that the superior court erred
in finding the municipal ordinance unconstitutionally overbroad.
Skagway argues that the ordinance was limited to only commercial
speech as defined by the United States Supreme Court, and claims
that the superior court essentially redrafted the ordinance,
ignoring the plain meaning of the statute, and then reached the
conclusion that the statute was overly broad based on its own
erroneous interpretation.
Robertson and Lee urge that this court uphold the
superior courts decision but advance several alternative grounds
for affirmance should we reject the superior courts finding that
the ordinance is overbroad. They argue that the ordinance fails
to satisfy Central Hudson, that it violates the due process and
equal protection clauses of the United States Constitution, and
that it is void for vagueness. They contend that the superior
courts decision could be affirmed on any of these grounds.
Skagway argues that only the overbreadth issue is before this
court, and if the superior courts decision is reversed, voluntary
dismissals by Robertson and Lee of all their claims preclude them
from seeking relief on other grounds.
Robertson cross-appeals, challenging the superior
courts July 2004 order that Robertson is not entitled to
compensatory damages under 42 U.S.C. 1983 for successfully
bringing an overbreadth challenge. Finally, Lee and Robertson
claim that they are entitled to attorneys fees if they prevail in
this appeal.
III. DISCUSSION
A. Standard of Review
The constitutionality of a statute and matters of
constitutional or statutory interpretation are questions of law
to which we apply our independent judgment, adopting the rule of
law that is most persuasive in light of precedent, reason, and
policy.11
When interpreting a statute, courts look to the plain
meaning of the statute, the legislative purpose, and the intent
of the statute.12 Statutes should be construed, wherever
possible, so as to conform to the constitutions of the United
States and Alaska.13
A grant of summary judgment is reviewed de novo, and we
will affirm if the record contains no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law.14
B. The Ordinance Is Not Unconstitutionally Overbroad.
The United States Supreme Court has defined commercial
speech as speech which does no more than propose a commercial
transaction.15 We have similarly characterized commercial speech
as communication proposing a commercial transaction.16 The First
Amendment, applicable in Alaska through the Fourteenth Amendment,
protects commercial speech from unwarranted governmental
regulation.17 But the United States Constitution accords less
protection to commercial speech than to other constitutionally
safeguarded forms of expression.18 Generally, the doctrine of
overbreadth is inapplicable to commercial speech unless the
challenged regulation also impacts non-commercial speech. The
theory is that commercial expression is not easily deterred by
overbroad regulation, and is considered more hardy, less likely
to be chilled, and not in need of surrogate litigators.19
In Alaska Transportation Commission v. Airpac, Inc., we
adopted the Central Hudson test for assessing the validity of
restrictions on commercial speech.20 The superior court found
that the ordinance satisfied Central Hudson as it concerned
commercial speech, but because the ordinance impacted non-
commercial speech in addition to commercial speech, it was
overbroad. Whether the superior court properly held that the
ordinance was overbroad therefore turns on whether the ordinance
should be construed as applying to non-commercial as well as
commercial speech.
Section A, the findings and purposes section of the
ordinance, expressly provides that it is directed solely to the
regulation of . . . certain limited forms of commercial speech,
and not intended to regulate any form of speech other than speech
designed to do no more than propose a commercial transaction.21
Despite this language, the superior court construed the ordinance
to prohibit the sale of anything on public streets and sidewalks
in the central business area of Skagway. In reaching its
conclusion, the superior court relied upon the definition of
business in section B of the ordinance, which is defined as any
commercial activity in which any goods, services, tours or
edibles are sold or offered for sale.22 The superior court stated
that [n]o matter what the prefatory language or the explanatory
language used by the drafters is, the operative language means
that not only is the sale of tours or tacos prohibited but so is
the sale of newspapers, bibles, books, art, and any other
expressive item that might be sold for a profit. Because the
superior court construed the ordinance as regulating non-
commercial speech as well as commercial speech, it deemed the
ordinance overbroad. We disagree with the superior court that
the ordinance should be read to extend to non-commercial speech.
The definition of business is incorporated into the
definition of Off Premises Canvassing. OPC is defined as person-
to-person efforts solely intended to interest pedestrians in or
solicit the participation of pedestrians in commercial
transactions for private profit with a business, except when done
within an enclosed structure.23 Skagway notes that it is OPC, and
not business more broadly, that is regulated by the ordinance.
In section C entitled Limitations on Off-Premises Canvassing
Activity the proscribed behavior is outlined, and does not
include the term business, except in the sense that it is
incorporated into the definition of OPC in section B.24
Therefore, the superior courts determination that the ordinance
prohibits the sale of anything on public streets and sidewalks in
the central business area of Skagway based on the definition of
business is not supported directly by the language of the
ordinance.
Lee further argues that the language in the definition
of OPC impermissibly focuses on the intent of the speaker when it
defines OPC as solely intended to interest pedestrians in
commercial transactions. He states that this includes speech
that is fully constitutionally protected, including expressive
items such as newspapers, message bearing T-shirts, or tarot card
readings, so long as the speaker intends to make a profit. But
Lees interpretation of the term solely intended would conflict
with the language in the findings and purposes section of the
statute which states that this section is . . . directed solely
to the regulation of the time, place, and manner of certain
limited forms of commercial speech.25 Considering the ordinance
as a whole and its legislative purpose and intent, we interpret
the ordinance as applying solely26 to commercial speech.27
To the extent that phrases such as solely intended have
created any ambiguity about whether the ordinance applies to
expressive items which enjoy full protection, we limit its
application.28 We recognize as valid the superior courts concerns
with the scope of the statute, and note that the ordinance should
not be construed to apply to the sale of newspapers, bibles,
books, art, and any other expressive item that might be sold for
a profit. As other courts have recognized, items such as music,
buttons, and bumper stickers bearing political, religious, and
ideological messages . . . are expressive items, and they do not
lose their constitutional protection simply because they are sold
rather than given away.29 And as the United States Supreme Court
has explained, speech that is commercial in the abstract does not
retain its commercial character when it is inextricably
intertwined with otherwise fully protected speech.30 Expressive
items are therefore outside the scope of this ordinance, which is
limited solely to commercial speech. Because we construe the
ordinance to apply only to commercial speech that does no more
than propose a commercial transaction,31 we do not deem the
ordinance overbroad, and we reverse the order.32
C. We Need Not Decide Which, if Any, of Lees and
Robertsons Claims Remain Viable.
Lee and Robertson argue that, even if we reverse the
superior courts decision that the ordinance is overbroad, we
should affirm the superior courts holding because the ordinance
fails the Central Hudson test, it violates equal protection and
substantive due process, and it is void for vagueness. But
Skagway argues that Robertson and Lee both waived their rights to
seek relief on alternative grounds when they voluntarily
dismissed their claims.
After the superior court decided in Robertsons favor
with respect to his overbreadth claim, Robertson decided to
proceed to trial on his remaining federal claims. On October 13,
2004, before trial, the parties reached a settlement agreement.
Robertson agreed with Skagway that the first, third and fourth
causes of Robertsons complaint . . . are dismissed with
prejudice. This included claims that the ordinance was
unconstitutional as applied to Robertson because it improperly
prohibits commercial speech, and that the ordinance was a
violation of federal equal protection and substantive due
process. The only claim that was preserved was the second cause
of action, that the statute was overbroad.
While Robertson casts his claim that the ordinance does
not meet the test for regulations of commercial speech under
Central Hudson as an alternative ground upon which this court can
affirm the superior courts holding, Robertson made the claim
below that the ordinance was a violation of commercial speech as
a separate claim. Robertson and Lee each moved for summary
judgment based on this separate commercial speech claim, and
their motions were denied by the superior court because material
factual issues were raised. Before those factual issues could be
resolved at trial, Robertson settled with Skagway, agreeing to
dismiss his commercial speech claim. Robertson does not appeal
the denial of his motion for summary judgment through this
appeal. Furthermore, Robertson clearly limited his right to
appeal to the overbreadth claim when he entered into the
settlement agreement. To allow Robertson to reopen the issue of
whether the superior court correctly determined that the
ordinance met the Central Hudson test after having settled his
commercial speech claim would essentially give Robertson another
bite at the apple, which we decline to do.
The superior court did not reach Robertsons claims that
the ordinance violated equal protection and due process and that
it was void for vagueness. Robertson therefore urges us to make
an independent determination that the ordinance violates equal
protection and due process and is void for vagueness in the first
instance. But it appears from the settlement agreement that
Robertson could be precluded from making the same arguments on
remand. We therefore decline to address these claims which are
not properly before us in this case. And since we reverse on the
overbreadth issue, we need not address Robertsons argument that
under 42 U.S.C. 1983 he is entitled to compensatory damages for
successfully bringing an overbreadth challenge.
Lee raised several state and federal law claims in
addition to the overbreadth challenge to the ordinance. On July
23, 2004, after the superior court declared the ordinance
unconstitutional, a pretrial conference was held to discuss any
remaining claims that might proceed to trial. At this
conference, Lees attorney engaged in an exchange with the
superior court about whether he could forgo trial on Lees
remaining claims pending the outcome of any appeal on the
overbreadth issue, yet preserve the right to restore the claims
should this court reverse and remand the case back to the
superior court. Ultimately, while stressing that he was
intending to dismiss the claims without prejudice, Lees attorney
agreed to dismissal of Lees remaining claims as moot, reasoning
that trying the claims would not result in any relief not already
granted to Lee under the courts decision that the ordinance was
overbroad, and that it was unnecessary for Lee to engage in what
would essentially be an advisory trial. Since the apparent
purpose of the dismissal was to obtain a final judgment on the
overbreadth claim, and we hold that the statute is not overly
broad, we conclude that there are no remaining claims in this
case. Of course, the parties are entitled to have the superior
court decide whether their dismissed claims remain viable if they
choose to refile them. But regardless of whether those claims
can be resuscitated if refiled, they are not presently ripe for
resolution.
Because attorneys fees would only be applicable if
Robertson and Lee prevailed in this appeal, we need not address
any claimed entitlement to attorneys fees.
IV. CONCLUSION
We REVERSE the determination that the ordinance was
overly broad.
_______________________________
1 SMC 5.20.010(A)(1).
2 SMC 5.20.010.
3 SMC 5.20.010(A)(1).
4 Id.
5 Id.
6 SMC 5.20.010(B)(4).
7 SMC 5.20.010(C)(3).
8 SMC 5.20.010(B)(1).
9 447 U.S. 557, 566 (1980).
10 SMC 5.20.010(B)(4) and (B)(1).
11 State Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 858 (Alaska 2003).
12 W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc.,
101 P.3d 1047, 1050 (Alaska 2004).
13 Alaska Transp. Commn v. Airpac, Inc., 685 P.2d 1248,
1253 (Alaska 1984) (citing McCracken v. State, 518 P.2d 85, 88
(Alaska 1974)).
14 Briggs v. Newton, 984 P.2d 1113, 1117 (Alaska 1999).
15 Virginia Bd. of Pharmacy v.Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 762 (1976) (quotation marks
omitted).
16 Alaska Transp. Commn, 685 P.2d at 1253 (citing Central
Hudson, 447 U.S. at 561-62).
17 Virginia Bd. of Pharmacy, 425 U.S. at 761-63.
18 Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 64-65
(1983).
19 16B C.J.S. Constitutional Law 812 (2005); see also
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 497 (1982) (noting that the overbreadth doctrine
does not apply to commercial speech).
20 The Central Hudson test, as adopted by this court,
asks: (1) whether the regulated commercial expression qualifies
as commercial speech in that it concern[s] lawful activity and is
not misleading; (2) whether the governmental interest is
substantial; (3) if so, whether the regulation directly advances
the government interest asserted; and (4) whether it is not more
extensive than necessary to serve that interest. Alaska Transp.
Commn, 685 P.2d at 1253.
21 SMC 5.20.010(A)(1).
22 SMC 5.20.010(B)(1).
23 SMC 5.20.010(B)(4).
24 SMC 5.20.010(C).
25 SMC 5.20.10(A)(1).
26 The Skagway ordinance uses the term solely, which was
offered as an example of proper limiting language by the Ninth
Circuit in S.O.C., Inc. v. County of Clark when it invalidated an
OPC ordinance because the explicit terms of the Clark County
Ordinance do not limit its restrictions to purely commercial
speech. 152 F.3d 1136, 1144 (9th Cir. 1998).
27 See W. Star Trucks, 101 P.3d at 1050.
28 As this court explained in VECO International, Inc. v.
Alaska Public Offices Commission:
Analytically, there are two ways a
statute could be overbroad, which might
loosely be termed systemic and local. An
overbroad statute is systematically overbroad
if there is no core of easily identifiable
and constitutionally proscribable conduct
that the statute prohibits. The separation
of powers decreed by the state constitution
requires that this court strike such a
statute in its entirety, rather than re-draft
it.
On the other hand, a locally overbroad
statute is one where the unconstitutional
applications can easily be lumped together
and severed. To strike such a statute would
be manifestly[] strong medicine, particularly
when the litigants own activities are not
protected, and the legislation clearly
intended to proscribe them. In such cases,
most courts will excise or construe the
challenged portion, whenever possible, to
avoid an unconstitutional result.
753 P.2d 710, 713 (Alaska 1988) (citations omitted). Robertson
and Lee argue that Skagway did not properly preserve the right to
request a limiting construction, but since it is a well-
established canon of construction that regulations should be
construed wherever possible to conform to the constitutions of
the United States and Alaska, this argument is without merit.
See Alaska Transp. Commn, 685 P.2d at 1253.
29 Perry v. Los Angeles Police Dept, 121 F.3d 1365, 1368
(9th Cir. 1997).
30 Riley v. Natl Fed. of the Blind of N.C., 487 U.S. 781,
796 (1988).
31 See Virginia Bd. of Pharmacy, 425 U.S. at 762 (defining
commercial speech as speech which does no more than propose a
commercial transaction) (quotation marks omitted); Alaska Transp.
Commn, 685 P.2d at 1253 (describing commercial speech as
communication proposing a commercial transaction).
32 Because we reverse the superior courts determination
that the ordinance extends to non-commercial as well as
commercial speech, we need not address the question whether the
ordinance is a reasonable restriction on the time, place, or
manner of protected speech.
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