the city of culver city will have succeeded in preventing a full and fair challenge to the constitutionality of the seriously flawed sine scheme and without having given  calendar and his davidson the opportunity to have full discovery and present relevant evidence on each of the issues i understand mr davidson mr calendar or separately situated  absolutely right this case must proceed in all respects with respect to miss calendar she's an independent person she had joined in the request to put up signs in advance of the november presidential  attacks on the ordinance and fundamentally the district court and davidson one had found that fixtures in the public right of way are a nonpublic form fixtures  light poles the utility poles this is so important because that is parallel to the decision invents and which the city spend so much time relying on but vincent was about the utility poles public property not the public right of way and if we could clear up once and for all that distinction between those factors and the full public right of way first of constitute a traditional public forum and have never been designated as a public forum by the city in the first case you're telling us that she never raised anything else but fixed you her plan then and as the early t r rose they were strapping these signs for get out the vote to the utility poles what about the allegations in the complaint in the current complaint and first davidson complained the first davidson complaint generally pled that she was seeking the right to display her get out the votes on but the way the case was litigated and it only when that case only went to summary judgment was with respect to the fixtures and that's was the stain of all because vincent but he was you know crane was brought in a film company all of the public right but not in terms of the actual issues that were litigated for purposes of ra part of a community committee right city council appointed committee to study the laws and one of the other features of that prior settlement was you know a remedy future of the future disagreements you could invoke it violation of davidson one davidson through had to address a new ordinance it had to address a new scheme in which they claim they were imposing a moratorium while approving and permitting other sites so your honor we simply recognized that this was going to be a battle there's one case speaks of the parties remain philosophically on a collision course and we were free on the eve of the municipal election a new action and seek a temporary restraining order so although that mediation that might have had us talking and going back and forth it was not a prerequisite it does not impair our right hand stakes in the grassy areas around trays they were going to be placed without the stakes they could have been placed on a frames in the sidewalk they could have been placed in the medium of the public right o whole new case presented itself in favorites and two and if i had if i fail the one thing i want to be sure to get across is that prematurely on a motion to dismiss where unfortunately the district court in accepted the invitation of the city to make factual findings on a motion to dismiss we got caught in this box that eventually the district court chastised us for not making a showing plaintiff fail to show that there is a longstanding practice or custom which constitutes the standard operating procedure of the local government we were fo because we made an allegation of discriminatory enforcement the sitting on the temporary restraining order brings in their one sided evidence that there are very vigorous they're very deliberate in enforcing the statute and the district court cites their evidence from the t r o on a motion to dismiss we are on the eve of taking the deposition of the fellow who  enforces the sign ordinance and the whole case it disappeared the day before because it was as dismissed the trial court on a motion to dismiss says the city of credible evidence to the contrary that there had been discriminatory enforcement this wasn't we didn't have our fair shot you're not supposed to convert a motion to dism a summary judgment without notice an opportunity to complete discovery and to present evidence but i want to urge this court in addition i hope so reversing because the  and the city has already applied the prohibition against them no understanding analysis as long as there is a definite and concrete dispute there's a real threat that's not hypothetical or abstract one doesn't have to await the consummation of the threatened injury with this right here the threat was that they would do anything to davidson through they would prohibit her signs while allowing other signs in the mustn't did is we applied to the city in april for both calendar and davidson to put up signs in advance of the november election we did that in april of two property there are other factors there exactly and what we think the strip of grass between the sidewalk and the road that's considered public property not owned by the homeowner right exactly and so are the media in those little tree the grassy areas around a tree or a pole so yeah put up signs on the side wall yes because of the pattern we were saying is to the extent that the city allows sandwich board signs and other signs on the sidewalk they obviously are not deeply concerned about the passage of but that's trans were willing to abide by any fair time place and manner that avoids blocking fidesz trains there's no goal of doing that here but we should not be discriminated against and we should have the same signage rights that other people have had in the public right of way i want to come to the standing issue that we had quote from the city's brain so we think this case is squarely before you as far as standing is concerned especially given first amendment rules as they relate to standing and that's true of both calendar  and ms davidson of course there's a significant distinction in terms of those rules between yes applied i understand and facial yes the literality applies more the facial challenges but we don't think it's  moment ago is that public places have historically been associated with the free expression activities like street sidewalks parks and it's important consistent with what this court said in a vs city of las vegas the nation casino and all that history of cases going back to hagan kerry and grayson frisbee and this new case i want to bring to your honor's attention tucker versus city  in a i'm sorry a wrath balloon a labor strike was attached to the public right of way there was a labor strike against a ford dealership and it was found to be a structure but the court and this court's warnings in a c l u versus last vegas that we not allow the public forum doctrine to convert what was once and analysis protective of expression into one which grants the government authority to restrict speech by theah and if indeed as a matter of first instance before you approach the second stage in the analysis generally speaking the public right of way in culver city is a public forum then this case changes drastically because then a district court has to make all of its judgments about the narrow nice of the restriction and the least restrictive means and whether the government interest in visual clutter when they're allowing the public right away to be festooned with signs all of that analysis will change if this case is returned to the district court with a finding that in the first instance this is a public forum rather than a non public forum which is what unfortunately the district court found your honour's i am sees the core deborah feyerick for the culver city and many times in these first amendment cases we get way to constitutional issues are we trying to fill in the gray in the borders or the unresolved issues but really in this particular case i don't think we face those battles or those weighty issues i think vincent really gets us all the way home in this particular case it's the functional equivalent of what occurred here in of signs banners and tenants in the public right of way within culver city that's precisely the challenge we have here the fact that perhaps plaintiff has thought of another fixture in the public right of way the case in davidson one did more for over the course of time that originally they talked about the post in their vote for a change signs on you know utility monsters in the needy ends then later on they talked about case and be careful about this public forum issue because it is on disputed that judge peace is found on at least four occasions but the city's public private ways are not a public forum and the and a different kind of experience and revitalize revitalization similarly in the nation casino you have the situation where the sidewalk in front of the casino has been taken for why and why i mean for roadway to improve traffic and the court said you know we can't we have to be very careful about this public forum issue care and look to the characteristics of the form i would offer i think that i'm just well you know signed wants in streets are the classic public forum and you can impose times time place and manner restrictions but they're entitled to the most scrutiny that's true but we do see in metro media that there's talk about the fact the first amendment issues are not fungible the fact that people can protest and they can still do stuff in culver city and they can have parades they can picket they can lead foot on a public sidewalk but there is not necessarily similar analysis when you look to the about talks about the fact you can't tell the signs to move you're blocking my way you can't have some discussion with a sign you can't tell us on you know thank you i don't want to view your message that you're trying to communicate to has resisted adding it's just no items into traditional public forum and this particular case there is no requirement that the city has to impose some sort of zone of silence and i think this particular instance i think is well it is important to the standing question ms colander does not have a concrete plan first two thousand and four and they hadn't asked the city for anything so it was not until months later on april twenty ninth two thousand and four that they did send the latter  and we are for that of course that would not be granted we do not allow those signs in the public right of way but certainly we have never had any prosecution actions against ms colander we think the thomas case along as well as the astra case supports that she does not have standing and an additional item that i've asked the court again to take note of is the fact that the city has amended the sign ordinance the court took judicial and in that particular instance the reason i do think it's well moved to challenge to recall one of their concerns was that if we hadn't adopted we them imposed a moratorium i've been in fact we have and i thought that the amendment and i'm sorry i miss indeed it is content face bailout songs that are regulating traffic signs that are indicating public facilities in the den if occasions of places and as we know in a non public forum you are allowed to have that type of content based issues now there is no no and there is no evidence that any of the other asserted a legal posted signs that contents had made any did to have done any factor in that ind it's not all of those signs are either signs that are directional signs or signs that all are legally posted and again going to the issue which we talk about in our police is that we cannot open up a form unless we do so intentionally illegal posting of signs that code enforcement may or may not have the opportunity to remove or to see does not rise to the level of a constitutional violation of the public streets of the city and not the public school restriction is permissible in the home and i think a little of both i think it's true that usually when you look at a c l u vs las vegas they say that you look at those characteristics to determine if the puppet is a public forum but those cases generally are really looking at the sidewalks they are not looking at the issue of the public right of way as the transportation mode and the consistency of it with signs and that's why of course since the so useful in that regard up those those pieces of paper and under the provisions of chapter thirteen that are at issue here and thirty seven s seventy eight we would if it's in the public right of way he would not be allowed to have to take what kind of scrutiny would you get you know kind of restriction complaint was completely frivolous and awarded ninety eight thousand i think it was or something like that that's correct let me ask you this was there any of the kirk co plaintiff apparently you know she wasn't burden certainly the city doesn't understand that it paid her over three hundred thousand dollars in the stipulated judgment resolving those issues for all time and then has again the same issues put before it and so it seemed to me th been violated but when you look at their amended complaint they make the allegations that we did not comply with the court's order those are part of the allegation but i don't have that stipulated judgment somewhat troubling in this case but let me ask you one other thank you counsel mr wrote to you has reserved time i think we heard a lot of important concessions just now we heard that the request of calendar and davidson would not have been granted a clear judicial admission of counsel and oral argument we do not allow those signs in the public right of way i think that's squarely presented this case for this court's ruling and  addresses the standing issue they were not going to allow lynn davidson and and sandra calender she also when she moved when miss fox talks about it in the nonpublic forum analysis she admits that the statute is content based she said that a few moments ago however without being overly patronizing or cloying i agree with judge friedman that you first look at the for the public right of way as public streets and sidewalks which are a public forum judge of scanlan's concerns were about adding to traditional public forums but we're not adding we are at the core of first amendment protection on public streets you start with that analysis and then you would have to look at the proper standard whether it was narrowly tan or tailored the district judge never went to a strict scrutiny test he said ok now i will further and analyze the form as a nonpublic form and he got into the reasonable tast under nonpublic for even there a reasonable test is a factual test involving a lot of factors and should not have been disposed of on a motion to dismiss the tabling of course was raised in a c l u versus last vegas i want to be sure to have commented that this case hardly justify an award of attorneys this was a genuinely fought case with serious issues we do not believe race judicata prevented in this davidson addressing a new ordinance it's sometimes overlooked in this case the new ordinance allowed for new threats when they quote the ordinance there are five sections and they read a number of them into two three and four or three four and five one allows news rights and under forty a statute which even allows government speech is content based and must go through the content based analysis which never happened in this imposed a moratorium however they continued to approve and allow signs in the public right of way which were functionally equivalent to davidson signs directions to the m directions to the presbyterian church announcements of commercial and noncommercial events all of this was in the public right of way by the either approval process of the city in a deposition the next day and i never got the chance to do that and we should not have been precluded with a assertion by the city that they're in forstmann it was highly appropriate much of what we heard are factual questions the legal standard what kinds of signs whether they block a sidewalk we haven't been able to bring your honour's a full record that would show you what the nature of culver city  regulations and use are i'd like to frankly sitting in that side of a courtroom be back here some day where a full record has been developed that this is a public forum and that the city has failed to enact adequate time place and manner regulations which are content neutral thank you very much thank you counsel the case just argued will be so it is poor decision and