morning our st case for argument this morning yes adams outdoor advertising versus the city of madison i see mr potts and mr blogging and can you hear me all right thank you very much you may receive mr pot stand before the court today because the city of madison does not like my client's business and my client does not like with the city has been doing to its business for the last thirty years the city of madison sign ordinance has caused adam's aging sign inventory to slowly deteriorate over the last three decades and let's be clear that is what the city of madison intended when it inactive the sign ordinance at issue in this case back in the late one thousand nine hundred and eighty s madison sign ordinances seven just pages long single spaced and it's our briefing has pointed out a numerous ways in which we think that the final one is an aunt it's not really there are two primary legal issues in  the st is whether in one thousand nine hundred declaratory judgment action precludes adam's lawsuit here i feel that our grief and in particular our reply brief as put this issue to bed so i'm going to not focus on it today and let the court has specific long ago and the ordinary has changed in some respects since then notably the digital sign provision but the text of the challenged provisions most notably the is not commercial time uses from the definition of advertising signs so we need to grapple with whether there is anything materially differen t in the provisions that you're specifically challenging here from the ordinance as it stood in the one thousand nine hundred and ninety s when it was looking at it and the ordinance as it stands now and you're bringing similar constitutional claims and then we can get to the declaratory judgment exception ok well i was going to say i with all due respect i would i guess reverse those because i don't think this court needs to get to declaratory rulings and damages so the st lawsuit that the court found did not preclude the nd one actually had a damages claim in it and what the supreme court said was and i'll quote here we agree with the rule as set forth in the restatement that it would retore judgment is only binding as to matters which were actually decided there and and is not binding to matters which quote might have been litigated in the proceeding here the one thousand nine hundred and ninety litigation was to our knowledge with a limited very limited files we have never decided and in our opinion and we have provided all of the claims for relief in our actual initial ordinance but more importantly that is not a request for damages in that action if they were to pursue damages pursuant to it takings claim they would have had to file another action under chapter thirty two dollars in wisconsin's condemnation proceeding so basically from a practical perspective that original complaint and that action the court would not include not of awarded damages in that action it would have been a subsequent action which we don't have  summary judgment briefs in this case the city never raised that as a defense we can only guess why but i assume it's because they thought the argument was a loser we don't have any of the files from that original case we don't have any of the decisions from that night the ninety case it was thirty years ago and i think we can all agree that the action brought by adams now the river these that they are seeking now could not have been given by the court in that original action thirty years have passed the law has changed substantially the horse has been fully revoked and reissued while some of the provisions stayed the same from a practical perspective the city literally revoked the entire ordinance and reissued it twice so i just think in this situation the district court's decision was grossly inequitable and i also think the district or didn't either didn't barberin well enough or maybe missed the language or guardian actually says it had to be decided that the clerical error ruling and in this case before the wire knowledge again because we don't have any of the fil racist and not i don't challenge that the court didn't have the power to do that i just frankly don't agree with the court's analysis of our brand or the original point that i would just ask the court the actual requests for relief in that original complaint we haven't they're very short and they all say they're requesting declaratory rulings or judgments one other issue i just before i turn to the constitutionality i want to make sure it's a factual it's very important i feel the only complaint we have in that action is the st complaint there was a nd amended complaint no one has that so we don't know whether the actual action that happened filed again it's an odd situation in which we don't have any of the files from the court i was surprised by that when we all asked the court for the file but i guess it is what it is so turning to the nd issue which i think is at least personally more interesting and any time you get to argue a st amendment case i think that's at least as a lawyer i find that pretty cool is is the city of madison sign ordinance unconstitutional and we believe it is a numerous respects in fact the ordinance has so many unconstitutional provisions difficult even to list them all in the brief or discuss them during oral argument recent u s supreme court decision read and four or four circuit court decisions all support adams claims here that the city's ordinance is unconstitutional the supreme court's read decision from and fifteen says all facially content based schemes like the one in adams ordinance i'm sorry in madison's ordinance are subject to strict scrutiny which madison's ordinance cannot meet earlier this year the th circuit in reagan found that a less restrictive say that again is less restrictive digital ban than the wanted madison's ordinance is unconstitutional and that the on premises off premises distinction again and eleven have both found that content based life licensing seems like the ones in madison ordinance are unconstitutional meanwhile the city's only support really only supported its briefing for the th circuit to agree with the city's position this court would need to find that when the u s supreme court said all laws that are content based are subject to strict scrutiny what the s supreme court really meant was all noncommercial laws are subject to that or content based or subject to strict truth that is not what the read court said well we didn't seem to need to  court also said that the distinction between premises billboards and premises billboards would stand constitutional scrutiny under the st amendment and really didn't touched on that and so we have to find a way to synthesize this case because we can't presume that this meant to overrule metromedia yeah and i completely agree with you your honor and actually that's where i was going next the rub in this case is that even if the read doesn't apply and metromedia does adam should still prevail in the reason is because metro media in central athens intermediates that tests a test only apply the sign ordinances that are purely commercial speech here in the city's ordinance in place when adams filed this complaint regulated advertising signs both that were noncommercial in marshall and it's undisputed in the record like it wasn't reagan in the th circuit case that about thirty percent of adam's messages on its lines are noncommercial in fact i would argue that the that the city of madison went in amended its ordinance to remove references to noncommercial speech after adams filed a lawsuit in this case and after the city used this old ordinance the deny adams permit application sight read and metromedia do not have to read did not have to overrule metromedia the way that reagan and the th circuit looked at this issue they basically said the st test we will apply is is a constant basis if it's content based strict scrutiny applies in last the metromedia exception for purely commercial speech applause and then reagan they said well in this case the advertising signs companies have and the record below shows that the advertising sign companies and i think it will maher and one other they show both noncommercial and for marshall messages at such metromedia as narrow and doesn't narrow exceptions for purely commercial speech does not apply so in that way the th circuit essentially reconcile the two decisions and gave both of the decision life in the situation in which the city is arguing they're effectively asking this court to say that metromedia applies every time even if there is noncommercial speech and vault as long as there is some commercial speech involved and that is not what the court found and that is not what central it's an s found and to my knowledge no other circuit courts have found as such but the bottom line here is really what if you take away one thing from my argument what i really want you to take away is that you don't need to read our very you don't need to read the cities or use to determine the constitutionality of the ordinance just read the ordinance itself exist that's why we made it exhibit a in our pending the ordinance exams numerous types of signs around the need to get a permit based soley on the contents of those signs and it changes the size and spacing of the signs based on the content of the sign in fact like in the six circuit on this decision the madison zoning administrator in a deposition said he has to read the signs content in order to determine how to regulate it under the ordinance for over thirty years madison sign ordinances banned all new advertising signs both commercial and noncommercial from being erected in the city and even after their post lawsuit amendments the city's organ bill bans all digital advertising signs regardless of whether they convey commercial or noncommercial messages and conversely the city's ordinance allows dozens of categories of signs to be erected in refer this to move in the city based on the content of those signs and a few examples i think are helpful and twelve square feet in size real estate signs can be up to twelve square feet and signs church but church in construction projects signs in a construction project sign that basically if they're building a building they're allowed to put up the name of the contractors an architect that are building that building those signs are allowed to be thirty two square feet and in other words commercial project and construction signs are allowed to be bigger than political s which is unconstitutional even under metromedia meanwhile in other areas of the city where you know the nonresidential is not around the square the size and height of signs are allowed to be bigger based on how many lanes of traffic in this these limit of the roads adjacent to the side now remember the city's purported purpose of this ordinance is traffic safety and   and so as an example an on premises culver's restaurant sign on a six plus lane road with speed limits above forty five miles an hour is allowed to be twenty two feet high and two hundred and eighty dollars square feet in size meanwhile that same culver sign on premises on a two lane road with speed limits less than thirty five miles an hour has to be one quarter of the si allowed but another type of speech is not allowed that impacts the other type of speech not allowed in other words adams put in on premises advertising selling in on it the point is that all of these other restrictions and sizes and other words adams can put up a thirty two dollars foot square foot construction advertising sound but the construction advertiser can adams can put up a political the way with the possible exception of the digital challenge well i don't agree that it's constitutional under metromedia but there are well known for example the ruling and the metro media majority opinion yes there are numerous other provisions that we challenge in the ordinances begun overbroad which i can get to also and as a prior restraint for example there was there were at one time definitions of commercial messag commercial message and then after we sued the city in their attempts to fix the ordinance they deleted completely the definitions of commercial message and noncommercial message so i asked so how  administrator has no guidance for determining what is a commercial or noncommercial message there are provisions that only apply to advertising signs that say you can't correct repair or maintain the signs and there are no definitions as to what that means there's no time limit for when a permit is that night so for example all of adam's twenty six dollars permit applications that were filed the city had no the city admit zoning in a straight or at no time limit well if that were been said promptly the ordinance says probably but there is no time limit and in that case i think it was sixty days but the point is this u s supreme court has said you need definite standards you need time limits in these kinds of situations i mean the bottom line here is that you have a zoning administrators mr tucker who gets to make all of these decisions he's unelected and he gets to make every decision about whether it's an on premises and whether it's an offer him at the time whether it's a political sign whether it's an advertising sign whether the message is commercial whether the message is noncommercial that is unconstitutional that is not ok based on the time yes i'm sorry i will reserve the rest of my time in your fine morning ma'am please the court very bluntly and with ordinance and clark on behalf of the city of madison and matthew t descendants and ellie's in this case is my sounds ok yes thank you i'd be happy to take the arguments and any manner that the court would like i do think there are a few points to clarify and starting perhaps with the last there in the twenty six dollars applications that were submitted in this case the record demonstrates that the applications did not list any of the content that would be contained on the billboards themselves they were submitted as billboard applications and only billboard applications have been submitted by adams to the city of madison and they have not submitted any real estate sign applications political sign applications or otherwise the city of madison has had a message substitution provision throughout the relevant time period which states that any sign that is up in the city of madison can contain a noncommercial message and that was the teaching from metromedia that to the extent that a regulation impacts noncommercial speech more negatively than commercial speech that creates obvious st amendment problems most  issues your honor i did want to touch on the fact that with respect to claim preclusion the judge had issued an order requesting supplemental briefing on that issue the parties did brief it and certainly there is no issue that particular issue in muhammad versus oliver and recognize that this court also has an interest in ensuring finality of previous decisions i will note that in light of the digital ban any decision on claim preclusion would not be dispositive and fully resolved the case with respect to that digital ban the digital ban manison has in place with respect to science it applies across the board to all sites there is no distinction based on content there is no restriction otherwise that allows for some digital signs in some circumstances but in not in others and madison digital signs are prohibited  and it is a time place manner restriction therefore and evaluated under intermediate scrutiny and that sense with respect to the commercial speech impacts central hudson and metro media set the stage explain this court how the analysis should proceed and that is the same analysis that this court embraced in the levy versus city of two rivers a decision recognizing the framework that the court this court must apply when evaluating a billboard case the st amendment is not a one size fits all solution it's complicated and messy there are different rules that apply to adult entertainment establishments to  zones and to billboards and metro media sets the framework there and as the supreme court has repeatedly admonish this court should not assume imply a plea that a supreme court decision has been overruled the instruction is that this court and all lower courts must wait and see how the court provides clear guidance that the decision no longer stands this court was able to do so in the context of  the norton decision because in the read this is in itself the supreme court majority made clear and clarified that the lower courts had been no over extending the award decision and this court recognized this much what adams is requesting this court to hear is much more aggressive and expansive and to read to construe the read decision much more broadly to an area that is sacrosanct in st amendment jurisprudence that is this commercial noncommercial distinction it's important to recognize that historically commercial speech received no protection under the st amendment and protection for commercial speech is a fairly recent innovation within the last fifty years or so and sense then we have extend it some protections and central hudson has set the framework for commercial speech and  certainly raises some questions about how we proceed forward but the important answer is we look to supreme court precedent to decide the path metromedia sets the path and as the district court correctly how  commercial speech aspects are a survive intermediate scrutiny under central hudson the noncommercial impacts survive scrutiny as a reasonable time place manner of restriction as does the digital ban  that perhaps the place that i should have started at least analytically is the standing arguments and i don't want to spend too much time on this but i did want to address the district court's ruling that adams attempt to broadly challenge  aspects of the ordinance that have no impact on adam's business fall outside the scope of this court's authority injury causation redress ability or not something that just have to be established once as a gating measure an order to being a case but the supreme court's decisions have made it clear that standing is not dispensed in gross that it has to be decided for each claim and for each form of relief saw and the district court appropriately like advertising signs and hands at times business so there's a lot left there are a lot of opportunities for alums to atoms to bring challenges although we think that they need to be framed in the context of the permit challenges the permit denials that form the basis for the appeal and many of the provisions on which adams permits for deny are related to size or setback or location or construction materials that served by scrutiny and therefore this court should not reach broader principles if their permits would be rejected on other grounds that simply survive scrutiny in the ordinary constitutional sense not just that and as applied challenges to the current denials we certainly recognize adam's attempt to do so your honor and we also recognize that in some respects these are labels that shouldn't limit the opportunity for the court to evaluate certain issues but there are important distinctions here and one is that facial challenges or prospective relief and as applied allow for  retrospective looking relief one of the arguments that we raised in that the evidence below shows your honor is that adams throughout the entire course of this litigation has maintained the rights a bill to sign in the city of madison consistent with the regulations that the city has and place and sign credit provisions and on settlements that the city that madison that gives me out and said previously answered with the city if they have an opportunity to build the sign now then a broad sweeping challenge would not produce any sort of right redress ability for adams because they have the right now to build a side they are trying to mount a broad challenge and we respectfully submit that they do not have standing to do so because the particularly as that they submitted to this court and the court below relates to the twenty six permit applications and the particularly facts do matter and shape the kind of controversy that this court has to consider and the district court below disagreed and reached those issues but we also believe that there were appropriately framed as a matter of constitutional avoidance that is if the city appropriately denied adams tw and twenty five of the twenty six permit applications one was provisionally granted if those permit applications were appropriately deny this court does not need to reach any further because adams has suffered no harm against the particularly permit applications that were submitted and deny we did raise those as arguments also additional reasons for granting summary judgment of the court below and because of the court's ruling it didn't reach the issue of damages  but particularly in light of the fact that at all times throughout this litigation adams has had the opportunity to build a sign in madison assuming it can find a suitable place to do so that is a landowner that's willing to lea the property to adams and adams willingness to make the business decision to go forward and do that we submit respectfully that adams can't argue injury in fact in a broad sense the district court correctly concluded and we do not contest injury in fact with respect to the permit applications they want bigger science they want digital science and the city denied them based on the ordinance provisions and adams has a right to bring that challenge  the city of madison has a provision that allows in certain circumstances where redevelopment occurs for that sign to be taken down and replace with a sign of equal square footage elsewhere in the city right no i understand that provision there have been here it has been in place for some time your honor the prospect of a ban on construction of new billboards science correct and i appreciate the opportunity for clarification because it sounds as though i have created a confusion here what i'm referring to specifically your honor is adam's right to build a new billboard based on settlements that have previously been entered with the city and also replacement credits under the provision of the ordinance that  they've got unlike other applicants who don't have that right they have a special grandfather powers that allow them to build a sign right now assuming that other provisions are met that other zoning and set back and other rules  complied with but i think and clarifies thank you i appreciate that opportunity we do think that the important framework means to stay on supreme court precedent and that the supreme court in measure media itself explaining that billboards are their own media and deserve their own analytical attention and it's how the supreme court says otherwise that is the framework that this court in the past has applied as and lay  the decision and others to recognize you separately consider commercial and noncommercial impacts and under the commercial impacts the central hudson guidance controls it is important to recognize how far reaching a decision would be to the contrary it would have banned in the long standing distinction between commercial and noncommercial speech the only way that that distinction can ever be made is based on the contents of the speech itself as the supreme court recognize than central hudson establishing that distinction but because commercial speech is recognized as inherently more robust we recognize that differential approved treatment is appropriate under the law and this court should maintain that distinction and under that distinction at madison's or and survives adam's challenge here and the district court's decision should be affirmed in all respects i'd be happy to see other answer any other questions time in your briefing to preclusion and you've said nothing about it so far well thank you for the opportunity to address the claim preclusion and i be happy to and yes we do believe that it is a defensible and strong decision  and appropriate one based on the law this court's decision and stare a cycle recognize that the declaratory judgment exception under state law it applies only when declaratory review is is the sole relief recognize that any time relief in the cases that goes beyond declaratory relief then that case falls outside of the declaratory judgment exception and so it is not as significant under wisconsin law that there are separate claims with separate forms of relief and that you parse out to the the impact of claim preclusion on a claim by claim basis but rather on the case as a whole  the fact that in the amended complaint may have been submitted in this case and that we don't know it has no legal significance under the claim preclusion analysis under was on some law and the most recent decision and  in our briefs the critical this question is not what claims were in fact asserted but what claims could have been asserted in that clay case and the previous complaints demonstrate beyond question as a matter of law that the clip the constitutional claims were asserted at one point in time even if they were removed in a later complaint that wouldn't change that test the analysis which asks could they have been brought in the case and the fact that they were indeed demonstrates is a matter of law that they could have been brought declaratory judgment exception does not apply the one thousand nine hundred and ninety three settlement  provided a final resolution to these particular claims with prejudice and if the argument that that settlement should not be given precludes the fact could have disastrous effects long term for all it against seeking finality in the course of litigation as this court noted this city did preserve these claim preclusion arguments as an affirmative defense and to the extent that  proceeded any further beyond summary judgment would have been up had an opportunity to fully address these issues of claim preclusion with the corps and i'm the ordinance to the extent that it regulates advertising s s the saying now as it was then apart from the digital ban the substantive impact on adams and on advertisers looking for billboards is the say the band on billboards that adam seeks to challenge to build more billboards was the same then as it is now a perman important but in terms of the general regulation of advertising signs it remains the same as a textual matter now as it was then with the exception of the digital si i i believe that's correct your honor his site from provisions that we don't think materially impact the challenge for instance the right to move a sign because of redevelopment was a provision that i believe happened after the provision sad even though it was repealed and replaced it was done so as an administrative matter to help clean up a broader sign code provisions do not affect the billboard provisions that are being challenged in any meaningful way case with congress individual laws are passed in the us code is really just a compilation so trying to establish exactly what the law looks like at any given time particularly before the internet was this robots that  as it is now means that you have to stitch together those individual bills to see what the law looks like at any given snapshot in time which is precisely what the clerk of the city of madison did in order to provide a clear and authorit understanding historically of what the law was this off premise on premise distinction as one of the substantive points that they were directly attacking and challenging in that litigation and that is the same substance of distinction that formed part of the court holding in the majority decision in measure media it also importantly was recognized in read itself in the concurrence written by justice alito as something that would not be impacted by the holding in read and so it is particularly challenging not only because of the principle and decisions like agnes seanie magazine that this court should not imply hadlee assume over ruling but this court  take care and recognize the words and read itself that this premise on premise distinction is one that should survive constitutional muster under intermediate scrutiny seeing no more mischaracterized the wisconsin supreme court's rb indecision that decision said and i quoted the language before it said declaratory judgment is only binding as to matters which were actually decided and is not binding to matters  well i don't think sarah cycle changed the wisconsin supreme court's analysis and daryn in any meaningful way i also don't think that what mr blondin is saying is correct and that st of all no damages were requested in any of the claims in the original action i think the idea that they asked for a declaration that they could go bring a action that was brought in the nine one hundred and ninety dollars litigation there is a separate statutory process they would have to file a new action to start kind of next you know to start essentially the compensation process to other quickly things i'd like to talk about mr lonnie and he kept referring to the fact that adams has a credit and could build a new billboard first of all adams can't build any new advertising signs anywhere in the city other than one that's a replacement and this replacement credit is only for very narrow portions of the city where it's not very easy to find land rights to be able to build a new billboard so to say that adam isn't harmed by that the city of madison ban on all advertising signs of any size for thirty years because adams now has one credit in a small place of the city and hasn't been able to identify land rights is frankly disingenuous the last thing i'd like to talk about and if the court would allow me is that it's all banned and i just don't want there to be any confusion the digital ban is the city of madison allows something called electronic changeable copy signs which are different from digital signs there are signs like a walgreens fine that had electronic tax changes that you would see around town those are allowed  heightened level of scrutiny because you can't even speak at all in that fashion so with that unless the court has additional questions all right i think we're concluded thank you very much our thanks to both