Frank Wagner v. City of Garfield Heights

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0027n.06

Case No. 13-3474

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 13, 2017
FRANK WAGNER, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON REMAND FROM THE
v. ) SUPREME COURT OF THE
) UNITED STATES.
CITY OF GARFIELD HEIGHTS, OHIO; )
WILLIAM WERVEY, )
)
Defendants-Appellants. )
)

BEFORE: BOGGS, NORRIS, and WHITE, Circuit Judges.

PER CURIAM. In September 2011, Frank Wagner placed a sixteen-square-foot street-

facing political sign on the lawn of his Garfield Heights, Ohio, home. Wagner promptly received

a letter from the City of Garfield Heights, informing him that his sign exceeded a six-square-foot

limit for “political” lawn signs established by municipal ordinance and raising the prospect of

legal action against him. Wagner responded by filing suit in federal court. Wagner alleged a

First Amendment violation and sought to enjoin Garfield Heights from enforcing its allegedly

unconstitutional ordinance. The district court enjoined Garfield Heights from enforcing that

particular section, but did not grant any other relief. We reversed, holding that Garfield

Heights’s limitation on the size of political signs survived the intermediate scrutiny applicable to

content-neutral regulations. Soon after our ruling, however, the Supreme Court issued a decision
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in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), and vacated our judgment in light of its

opinion. On remand, Wagner argues that this new authority requires us to subject Garfield

Heights’s sign restrictions to strict scrutiny. We hold that it is subject to strict scrutiny—a

stringent standard that Garfield Heights cannot meet—and affirm the decision of the district

court to award Wagner an injunction.

The City of Garfield Heights is a largely residential suburb of Cleveland, Ohio. Just as

many such municipalities throughout the nation, Garfield Heights seeks to ensure that its

neighborhoods are “aesthetically harmonious” and endeavors to promote the safety of “the

motoring public [and] pedestrians.” Garfield Heights, Ohio, Code § 1140.01(c)–(d). To this

end, the City has enacted Garfield Heights Codified Ordinances Chapter 1140, a comprehensive

code of regulations that governs whether, when, and for how long its residents, businesses, and

visitors may post signs. These regulations generally prohibit signs in residential areas. Id. §

1140.361. But given that Garfield Heights acknowledges “the rights of [its] residents” to “speak

freely,” id. § 1140.01, Sections 1140.04(f) and 1140.361 of the Codified Ordinances allow

residents to place “temporary signs” measuring less than twelve square feet in surface area on

their lawns. See id. §§ 1140.04(f), 1140.361.1 For example, Chapter 1140 would seem to allow

a resident to erect a temporary lawn sign of up to twelve square feet advertising a lemonade

stand, an Avon party, or the opening of an in-home daycare. See id. §§ 1140.04(f), 1140.361.

1
We note that two different versions of Section 1140.361 appear in the record. (Compare R. 5, PgID 33, 73 (“No
signs shall be permitted in any residence district . . . except the signs exempted from the permit requirements of this
chapter by Section 1140.04.”) (emphasis added), with R. 7, PgID 133; R. 49-2, PgID 1463 (“No signs shall be
permitted in any residence district . . . except the signs exempted from the permit requirements of this chapter by
Section 1140.03(g).”) (emphasis added).) Since there is, in fact, no Section 1140.03(g), and since the parties seem
to agree that the former version is the correct version, we accept that this is so.

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But “for-sale signs, sold signs, open house, for-rent, and leasing signs, and signs of a

religious, holiday, personal or political nature” are subject to additional, more restrictive rules.

Id. § 1140.361. Under Section 1140.361, only one “for-sale, sold, for-rent, leasing, open house,

religious, holiday or personal sign” not exceeding six square feet is permitted on a given lot in

single-family residential districts. Ibid. Section 1140.362 extends this six-square-foot limit to

political signs and goes even further by providing that the limitation applies to all political signs

throughout Garfield Heights, including those in commercial and industrial districts. Id.

§ 1140.362. By contrast, “religious,” “holiday,” “personal,” and other non-political temporary

signs in commercial and industrial districts can generally be as large as twelve square feet in sign

area without a permit, id. § 1140.04(f), and up to thirty-two square feet with a permit, id.

§ 1140.37(e).

Despite being subject to more restrictive size constraints in non-residential areas, in

residential areas, political signs are subject to fewer overall restrictions than “for-sale, sold, for-

rent, leasing, open house, religious, holiday [and] personal” signs. Whereas residents must

remove these other signs within forty-eight hours after the signs “fulfil[l] [their] purpose,” id. §

1140.361, residents may leave political signs up for up to seventy-two hours after an election, id.

§ 1140.99. Additionally, despite some language in the City’s ordinances to the contrary, see id.

§ 1140.29(a), Garfield Heights maintains that whereas residents may post only one “for sale,

sold, for-rent, leasing, open house, religious, holiday or personal” sign on their property, they

may erect as many political lawn signs as they want until they run up against a regulation that

restricts the “total sign face area of all temporary signs on a lot” to 0.675 square feet per foot of

frontage. See Appellants’ Br. 9 (citing Garfield Heights, Ohio, Code § 1140.362); see also

Garfield Heights, Ohio, Code §§ 1140.361, 1140.04(f), 1140.37(e), 1140.27(a). Thus, a Garfield

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Heights resident with fifty feet of frontage could presumably post any number of political lawn

signs so long as their total sign face area does not exceed 33.75 square feet. See Garfield

Heights, Ohio, Code §§ 1140.361, 1140.04(f), 1140.37(e), 1140.27(a).

Frank Wagner is a Garfield Heights, Ohio, resident who opposed former councilwoman

Tracy Mahoney’s position on traffic cameras in Garfield Heights, as well as her plan to introduce

a municipal tax on waste disposal. In September 2011, Wagner’s opposition to Mahoney’s

politics apparently spurred him to place a sixteen-square-foot sign on his lawn opposing

Mahoney’s reelection bid. Wagner’s sign read: “You do the math[:] Traffic Camera[s] +

Rubbish Tax = Mahoney Baloney.” An apparently unamused Mahoney learned about Wagner’s

sign and called Mayor Vic Collova and Building Commissioner William Wervey to complain.

Mayor Collova, who had also fielded a complaint about Wagner’s sign from another area

resident, drove by Wagner’s house and concluded that the sign “was obviously larger in size than

the” six-square-foot size restriction applicable to political yard signs set forth in Section

1140.362 of the Garfield Heights Codified Ordinances. See Garfield Heights, Ohio, Code

§ 1140.362. Wervey followed up by visiting Wagner’s house two days later, but upon seeing

that Wagner had taken his sign down, advised Mayor Collova that Wagner was in compliance

with the City’s sign regulations.

Later that week, however, Mahoney contacted Mayor Collova again to let him know that

Wagner had put the sign back up. This time, Mahoney “specifically requested” that Garfield

Heights enforce Section 1140.362, the City’s six-square-foot limit to political signs, against

Wagner. Mayor Collova agreed and instructed Wervey to send Wagner a letter requesting that

he comply with the City’s sign regulations. Wervey then drafted and sent a letter asking Wagner

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to “remove the sign in your front yard or reduce [its] size to conform” to Section 1140.362. The

letter nowhere mentioned the generally applicable twelve-square-foot limit set forth in Sections

1140.04(f) and 1140.361. The letter concluded with a warning, informing Wagner that if his

political sign was not removed by September 23, 2011, the City of Garfield Heights would “have

no choice but to proceed with legal action in” state court, where Wagner would face up to $1,000

in fines for each day of noncompliance with Section 1140.362. See Garfield Heights, Ohio,

Code § 1140.99.

Upon receiving and reading the letter, Wagner filed an action against Wervey and

Garfield Heights in federal court, seeking a declaratory judgment that, whether facially or as

applied to him, Section 1140.362—the ordinance governing the size of political signs—was an

impermissible content-based restriction on speech that violated the United States and Ohio

Constitutions. Wagner also sought to enjoin Wervey and Garfield Heights from enforcing the

ordinance. The defendants responded by filing a counterclaim for a declaratory judgment that

Garfield Heights’s ordinances regulating political signs were constitutional. After taking

discovery, both sides moved for summary judgment on their respective claims.

The district court entertained Wagner’s facial challenge and ruled in his favor. The court

began by identifying the various ways in which Garfield Heights’s ordinances distinguish

between “political” and other yard signs and concluded that because Section 1140.362 “singles

out political signs for different treatment than all other signs,” that part of the Codified

Ordinances is a content-based restriction on speech subject to strict scrutiny. The district court

then determined that because neither of the governmental interests that Wervey and Garfield

Heights advanced in defense of the ordinances—namely, aesthetics and traffic safety—were

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compelling, and because the statute was in any event not narrowly tailored to achieve either of

those goals, Section 1140.362 violates the protections for freedom of speech set forth in the First

Amendment to the federal Constitution. The court determined that Section 1140.362 was

severable from the remainder of Chapter 1140’s regulations and permanently enjoined Garfield

Heights from enforcing it.

The defendants appealed and we reversed. See Wagner v. City of Garfield Heights, 577

F. App’x 488, 500 (6th Cir. 2014). We held that although the district court was correct that “the

City must determine whether a sign is political or not” before determining how to regulate, the

district court erred by applying an “absolutist” test for content-based discrimination. Id. at 493.

Citing our earlier decision in H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609 (6th Cir.

2009), we explained that “context matter[s] when a court assesses content neutrality.” Id. at 495.

Relying on the parties’ representations—which omitted any reference to the understanding that

Chapter 1140 would allow some temporary residential yard signs, such as those that advertise

on-site commercial activity, to extend up to twelve square feet in area—we observed that in the

context of Garfield Heights’s residential districts, “political signs are subject to no greater

restrictions than are non-political signs,” and “non-political [signs]” are actually “subject to more

restrictive regulation” than political signs. Id. at 496. Because this context did not suggest that

Garfield Heights had singled out political signs in an effort to suppress political speech, we

applied intermediate scrutiny and upheld the six-square-foot size restriction on political signs as

an acceptable way of accomplishing the City’s legitimate aesthetic and traffic-safety goals. Id. at

498–500.

Wagner filed a petition for a writ of certiorari in the Supreme Court. While Wagner’s

petition was pending, the Supreme Court issued a decision in Reed v. Town of Gilbert, 135 S. Ct.

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2218 (2015). In Reed, an Arizona pastor challenged a local sign regulation that effectively

prevented his church from posting temporary signs directing people to church services. Id. at

2225–26. The pastor argued that because the relevant regulations treated signs intended to direct

people to “religious, charitable, community service, educational or other similar non-profit”

events less favorably than other signs, such as “political signs” and “ideological signs,” the

regulation was a content-based restriction on speech and strict scrutiny thus applied. Id. at 2224–

25. Even though the context did not suggest that the municipality intended to suppress speech

related to non-profit events, see Reed v. Town of Gilbert, 707 F.3d 1057, 1069–72 (9th Cir.

2013), the Supreme Court agreed with the pastor, explaining that “[a] law that is content based

on its face is subject to strict scrutiny regardless of the government’s benign motive, content-

neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech,”

Reed, 135 S. Ct. at 2228 (quoting City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,

429 (1993)).

In light of its holding in Reed, the Supreme Court granted Wagner’s petition, vacated our

judgment, and remanded Wagner’s action to us for further consideration. See Wagner v. City of

Garfield Heights, 135 S. Ct. 2888, 2888 (2015) (mem.).

It appears that our embrace of a context-dependent inquiry into the content neutrality of

Section 1140.362 may be inconsistent with Reed. In particular, our holding that the fact that a

regulatory scheme requires a municipality to “examine the content of a sign to determine which

ordinance to apply ‘should merely be seen as indicative, not determinative, of whether a

government has regulated for reasons related to content’” appears to run afoul of Reed’s central

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teaching. Wagner, 577 F. App’x at 494 (quoting Brown v. Town of Cary, 706 F.3d 294, 302 (4th

Cir. 2013)); see Reed, 135 S. Ct. at 2228. Accordingly, in light of the Supreme Court’s remand,

we asked the defendants and Wagner to submit briefs concerning the impact of Reed on our

previous decision in Wagner.

The defendants responded by arguing that Wagner lacks standing to litigate this case

because we cannot redress the injury that he asserts. See Appellants’ July 31, 2015, Letter Br. 9–

12; Appellants’ Oct. 15, 2015, Letter Br. 3–4. Wagner, for his part, argues that the distinction

between political and other signs in the City’s ordinances means that the law is subject to strict

scrutiny and must be invalidated for the reasons given by the district court. Appellee’s July 31,

2015, Letter Br. 2–12. We evaluate each of these arguments de novo. See Fieger v. Mich.

Supreme Court, 553 F.3d 955, 961 (6th Cir. 2009); Ne. Ohio Coal. for the Homeless v. City of

Cleveland, 105 F.3d 1107, 1109 (6th Cir. 1997).

Because “[s]tanding is the ‘threshold question in every federal case,’” Grendell v. Ohio

Supreme Court, 252 F.3d 828, 832 (6th Cir. 2011) (quoting Coyne v. Am. Tobacco Co., 183 F.3d

488, 494 (6th Cir. 1999)), we begin with the defendants’ contention that Wagner lacks standing,

and that we thus lack jurisdiction in this dispute. It is well established that federal courts have

the power to adjudicate only “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. That

jurisdictional limitation requires this court to ensure that the parties before it have “standing,”

which is loosely defined as a sufficiently strong “personal stake in the outcome” of a particular

controversy to “justify exercise of the court’s remedial powers on [a litigant’s] behalf.” Warth v.

Seldin, 422 U.S. 490, 498–99 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

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A plaintiff establishes Article III standing by demonstrating (1) that he has “suffered an

‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and

particularized, and (b) ‘actual or imminent, not conjectural or hypothetical,’” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990));

(2) that a causal link exists “between the injury and the conduct complained of,” ibid., that is, the

injury can fairly be trace “to the challenged action of the defendant,” Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 41 (1976); and (3) that it is “‘likely,’ as opposed to merely

‘speculative,’ that the injury will be ‘redressed by a favorable decision,’” Lujan, 504 U.S. at 561

(quoting Simon, 426 U.S. at 38, 43). A plaintiff must establish all three components to satisfy

the standing requirement, ibid., which applies with equal force to plaintiffs making First

Amendment overbreadth challenges, see Fieger, 553 F.3d at 961. In this case, the defendants

argue that Wagner cannot establish the third standing component of “redressability.”

Appellants’ July 31, 2015, Letter Br. 9; Appellants’ Oct. 15, 2015, Letter Br. 3–4.

The defendants argue that Wagner lacks standing because his sign, measuring sixteen

square feet, would be prohibited under a different ordinance even if the challenged political-sign

ordinance was struck down as unconstitutional.2 We need not evaluate the applicability of this

separate ordinance, raised only after years of contentious litigation we might add, because even if

it would otherwise prohibit Wagner’s sign, it has no bearing on his entitlement to the injunctive

relief he seeks. Wagner did not request an order permitting the posting of his sixteen-square-foot

sign. Rather, faced with a letter from Garfield Heights threatening legal action based on the

2
The defendants point to language in Section 1140.361, which exempts from prohibition any category of signs listed
in Section 1140.04. That section, in turn, explicitly mentions “[t]emporary signs measuring less than twelve (12)
square feet in sign face area, provided that such signs otherwise comply with” several requirements not immediately
relevant here. Garfield Heights, Ohio, Code § 1140.04 (emphasis added). Because Wagner’s sign exceeds twelve
square feet, the defendants argue, this provision would prohibit his sign regardless of the political-sign ordinance.

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political-sign ordinance in Section 1140.362—and only that ordinance—Wagner sought an

injunction against the enforcement of that specific provision. The district court, in turn, did not

order that Wagner’s sign be permitted, just that Garfield Heights be prohibited “from enforcing

Section 1140.362 of the Ordinance.” This injury—the threatened enforcement of Section

1140.362—is what Wagner seeks to redress, and it remains unaffected by the ability of Garfield

Heights to employ a different ordinance to achieve its desired outcome.

The Court’s decision in Larson v. Valente, 456 U.S. 228 (1982) is illustrative on this

point. Larson involved a challenge to a Minnesota statute that set registration and reporting

requirements for charities soliciting funds from the public, and also imposed restrictions on the

organizations’ expenditures. Id. at 230–31. As originally enacted, all “religious organizations”

were exempt. Ibid. In 1978, however, the state revised the statute to limit the exemption to

religious organizations that received more than half of their total contributions from their

members. Id. at 231–32. Shortly thereafter, state officials notified Holy Spirit Association for

the Unification of World Christianity (the Church) that it would have to register because it did

not satisfy the fifty-percent rule for exemptions. Ibid. The church and several of its members

sued, alleging, inter alia, that the fifty-percent rule “constituted an abridgment of their First

Amendment rights of expression and free exercise of religion.” Id. at 232–34. The defendants

contended there was no standing, arguing that the Church would still be subject to the

registration and reporting requirements, irrespective of the challenged fifty-percent rule, because

the Church had not shown it was a religious organization within the meaning of the exemption.

Id. at 235. The Court disagreed, explaining that:

[t]his litigation began after the State attempted to compel the Church to register
and report under the Act solely on the authority of [the] fifty per cent rule. If that
rule is declared unconstitutional, as appellees have requested, then the Church
cannot be required to register and report under the Act by virtue of that rule.

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Since that rule was the sole basis for the State’s attempt to compel registration
that gave rise to the present suit, a discrete injury of which appellees complain
will indeed be completely redressed by a favorable decision of this Court.

Id. at 242–43 (emphasis added). The attempted use of the rule “as the State’s instrument of

compulsion necessarily g[ave] [the Church] standing to challenge the constitutional validity of

the rule.” Id. at 241.

Here, as in Larson, Wagner engaged in activity he alleges is protected by the First

Amendment, and government officials sought to curtail that activity. Just as in Larson, the

government officials could have acted pursuant to two separate statutory provisions: Sections

1140.361 plus 1140.04 (the twelve-square-foot limit on all signs in residential areas) or Section

1140.362 (the six-square-foot limit on political signs). Garfield Heights chose the latter, and

specifically highlighted that provision as the sole basis for its threatened legal action against

Wagner. Thus, as in Larson, the attempted use of Section 1140.362 “as the State’s instrument of

compulsion necessarily gives [Wagner] standing to challenge the constitutional validity of the

rule.” Ibid. Wagner “may indeed” be barred from erecting his sixteen-square-foot sign by

Sections 1140.04(f) and 1140.361, but that fact “does not deprive this [c]ourt of jurisdiction to

hear the present case.” Id. at 242.

Our opinion in Midwest Media Prop., L.L.C. v. Symmes Twp., 503 F.3d 456 (6th Cir.

2007), relied upon by the defendants in their letter brief, is inapposite. That case dealt with the

denial of permit applications, id. at 459–60, not an injunction against an enforcement action.

There, the plaintiff sought damages and an injunction requiring the township to permit them to

erect the proposed signs. Ibid. Both of those remedies were contingent upon the theory that the

permit denial itself was the injury. Thus, the fact that the township could have used an

alternative provision to deny the requested permits properly deprived the plaintiff of standing, as

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the court could not redress the plaintiff’s injury even if the challenged provision was

unconstitutional. Here, however, Wagner does not seek an injunction to permit his sign, but an

injunction against the enforcement of the specific provision Garfield Heights sought to use to

prohibit his sign. Unlike the injury alleged in Midwest Media, Wagner’s injury is unaffected by

the availability of alternative mechanisms of enforcement. Thus, we conclude that Wagner has a

redressable injury that gives rise to standing in this case, and we may proceed to the merits of his

claim.

III

On the merits, our task is fairly simple: does Reed require us to apply strict scrutiny, and,

if so, can the Garfield Heights regulation survive this heightened standard of review. Reed

explains that “[g]overnment regulation of speech is content based if a law applies to particular

speech because of the topic discussed or the idea or message expressed.” 135 S. Ct. at 2227

(citation omitted). Thus, whether the regulation involves “defining regulated speech by

particular subject matter . . . [or] by its function or purpose” is ultimately irrelevant. Ibid. “Both

are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to

strict scrutiny.” Ibid. The Garfield Heights regulation in this case, Section 1140.362, applies

explicitly and exclusively to political signs. Thus it “applies to particular speech because of the

topic discussed,” and Reed commands that it be subject to strict scrutiny. Ibid. On remand, the

defendants do not contest this point. See Appellants’ July 31, 2015 Letter Br. at 12.

They do argue, however, that the disputed regulation can nonetheless survive strict

scrutiny. Id. at 12–14. This “requires the Government to prove that the restriction furthers a

compelling interest and is narrowly tailored to achieve that interest.” Reed, 135 S. Ct. at 2231.

Garfield Heights contends that Section 1140.362, just as the contested regulation in Reed,

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advances compelling government interests of aesthetic appeal and traffic safety. We will follow

the Court’s example in Reed and assume without deciding that these interests are sufficiently

compelling. See Reed, 135 S. Ct. at 2231.

Even so, Section 1140.362 succumbs to strict scrutiny for the same reason as the

contested regulation in Reed: it is “hopelessly underinclusive.” Ibid. In Reed, the Court noted

that the town placed “strict limits on temporary directional signs . . . while at the same time

allowing unlimited numbers of other types of signs that [diminish aesthetic appeal].” Ibid. Here,

Garfield Heights expressly limits political signs to six square feet, but permits other kinds of

temporary signs to be twice that size. See supra Part I.A. They offer no rationale for why

political signs, as opposed to a signs advertising local businesses, mar the city’s aesthetic appeal

in such a way as to merit an arbitrarily smaller size restriction. The appellants’ reference to the

analysis in our vacated opinion, see Appellants’ July 31, 2015 Letter Br. at 13, is unavailing.

The fact that we concluded that Section 1140.362 could survive the tailoring requirement

associated with intermediate scrutiny has no bearing on our tailoring analysis on remand

because, as we noted then, “[i]ntermediate scrutiny’s tailoring requirement differs importantly

from the more rigorous tailoring mandated by strict scrutiny.” Wagner, 577 F. App’x at 498.

Garfield Heights “similarly has not shown that limiting temporary [political] signs is necessary

to eliminate threats to traffic safety, but that limiting other types of signs is not.” Reed, 135 S.

Ct. at 2232. Because Section 1140.362 is not narrowly tailored to further the city’s interest in

promoting aesthetic appeal and traffic safety, it thus fails strict scrutiny.

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For the foregoing reasons, we hold that the ordinance is unconstitutional as it relates to

political residential signs. We thus AFFIRM the judgment of the district court and uphold the

injunction against Garfield Heights prohibiting the city from enforcing Section 1140.362.