### T= ILED 

### COURT OF APPEALS IN THE COURT OF APPEALS OF THE STATE OF WAS 

# G ON Z015 

### APP - 7 

### AM 9: 22 DIVISION II STATE OF WASHINOTON CITY OF LAKEWOOD,

Respondent /

Cross - Petitioner, No05034 - 8 -IL 

### DEPU

v. ROBERT W. WILLIS, UNPUBLISHED OPINION

Petitioner /

Cross - Respondent. MELNICK, J. — 

### On discretionary review,RobertWillis challenges his municipal courtjury trial conviction ofbegging in restrictive areas. Willis argues thatthe CityofLakewood's ( City's) 

### anti - begging ordinance is unconstitutional because it infringes on his freedom of speech, it is unconstitutionally vague, and it discriminates against the poor. We reject Willis' s freedom of speech and vagueness arguments and hold that the ordinance is a constitutional restriction on conduct in a non -

public forum, and affirm the superior court. We also dismiss Willis' s claim that 

### the ordinance violates equal protection by discriminating against the poor because review was improvidently granted on this issue. We do not reach the City' s cross - review claim that the superior court erred 

### by declining to hold that the ordinance is content - neutral. Accordingly, we affirm the superior court. FACTS AND PROCEDURAL HISTORY 

### A person called 911 to report an individual banging on his or her car while begging for 

### money onthe northbound I - 5 exit at Gravelly Lake Drive. A Lakewood police officer responded to the scene and found Willis standing on the shoulder of the northbound I - 5 ramp, facing south45034 - 8 -II 

### toward oncoming traffic.1 Willis had a cardboard sign stating he was disabled and needed help. Willis approached a car bywalking out from the shoulder and into the lane oftravel.

The City charged Willis with begging in restrictive areas under LMC 09A.4.020A. LMC 09A.4. 020A provides: " 

### Begging shall be deemed aviolation ofthis section ofthe municipal code
under the 

### following conditions: (

### 1) at on and offramps leading to and from state intersections from any City roadway or overpass." 

### Begging is defined as " asking for money or goods as a charity,
whether by words, 

### bodily gestures, signs or other means." LMC 09A.4. 020(E). A municipal court 

### jury found Willis guilty ofbegging in restrictive areas. 

### Willis appealed to the Pierce County Superior Court and, for the first time, raised constitutional challenges to the ordinance.2 The superior court affirmed his conviction and held that LMC 09A.4.020A is a reasonable time, place, and manner regulation that does not violate the First Amendment, the Due Process Clause, or the Equal Protection Clause. The superior court 

### reasoned thatthe ordinance was "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Clerk' s Papers (CP) at 108. The City argued that the restrictions were content - neutral; however, the superior court did not rule on the issue. Willis and the City petitioned this court for discretionary review, which we granted. We affirm the superior court. 

### 1The record is somewhat confusing, as it appears to indicate that the citing officer was coming southbound from the north, meaning that ifWillis had been on the northbound ramp, the officer would have had to cross the median to reach Willis. Regardless, the uncontroverted testimony established that Willis was at an " on [ or] off ramp[] 

### leading to [ or] from state intersections from any City roadway or overpass." LMC 09A.4.020A. This fact suffices for the foregoing analysis. 2 Because Willis did not raise his constitutional issues in the municipal court,the factual record is not well developed. 245034 - 8 -II ANALYSIS I. STANDARD OF REVIEW 

### The constitutionality ofastatute or ordinance is amatter oflawwe review de novo. Kitsap County v. Mattress Outlet, 153 Wn.2d 506, 509, 104 P. 2d 1280 (2005). In general, a duly enacted ordinance is presumed constitutional, and the challenger must demonstrate its unconstitutionality beyond a reasonable doubt. Mattress Outlet, 153 Wn.2d at 509. But in the First Amendment context, the burden shifts to the State to 

### justify a restriction on speech. Greater New Orleans BroadcastingAss' n, Inc. v. United States, 527 U.S. 173, 183, 119 S. Ct. 1923, 144 L. Ed. 2d 161 1999). This shift also occurs where the challenged law restricts the time, place, or manner of speech. Collier v. City 

### ofTacoma, 121 Wn.2d 737, 759, 854 P. 2d 1046 ( 1993). As we explain below, LMC 09A.4.020A restricts the place of speech. Therefore, Lakewood bears the burden to meet each element of the time, place, and manner test. II. FIRST AMENDMENT Willis argues that LMC 09A.4.020Aviolates his right to freedom ofspeech because it is a
content -

based prohibition on speech and less restrictive alternatives were available. Even if the 

### ordinance were content - neutral, Willis arguesthatthe Cityfailed to demonstrate thatthe ordinance supported a compelling state interest or was reasonably related to supporting that interest. The. 

### City argues that LMC 09A.4.020A is a permissible regulation of speech in a non - public forum. Alternatively,the City arguesthat LMC 09A.4.020A ispermissible as acontent - neutral restriction on the time, place, or manner ofspeech. We agree with the City and hold that a freeway onramp is a non -

public forum. We hold that LMC 09A.4.020A is a reasonable and viewpoint neutral 

### regulation, and we affirm the superior court without reaching the City's alternative argument.

345034 - 8 -II A. Forum Analysis 

### Forum analysis requires a two - step inquiry. First, we must determine the type offorum 

### affected bythe restriction here: Is itapublicforum, alimited publicforum, or anonpublic forum? If the forum is determined to be nonpublic, the restriction is constitutional if it is reasonable in light of the purposes of the forum and is viewpoint - neutral." Herbert v. Wash. State Pub. 

### Disclosure Comm'n, 136 Wn.App. 249, 263, 148 P.3d 1102 (2006). 

### The First Amendment to the federal constitution protects the right to freedom ofspeech.3 But the government is not obligated to permit all forms of speech on property that it owns and
controls. Sanders v. 

### City ofSeattle, 160 Wn.2d 198, 208, 156 P. 3d 874 ( 2007). Therefore, "[ i]n 

### reviewing a free speech challenge to a government regulation, the level ofjudicial scrutiny is determined 

### by the category into which a specific type of property falls." Sanders, 160 Wn.2d at 208. The courts distinguish between three categories of forums. First, there are traditional public forums which "' have immemorially been held in trust for the use ofthe public and ... for
purposes of assembly, communicating thoughts between citizens, and discussing public questions. ' 

### PerryEduc.Ass 'n v. PerryLocal Educators' Ass 'n,460 U.S. 37, 45, 103 S. Ct.948, 74 L. Ed. 2d 794 ( 1983) ( 

### quoting Hague v. Comm.for Indus. Org., 307 U.S. 496, 515, 59 S. Ct. 954, 83 L. Ed. 1423 ( 1939)). To be a traditional public forum, a property must have "` as a principal
purpose ... the free exchange of ideas. ' 

### Sanders, 160 Wn.2d at 209 ( quoting Intl Soc'yfor

3 " 

### Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or ofthe press; or the right ofthe people peaceably to assemble, and to petition the government for a redress of grievances." U.S. CONST. amend. I. 445034 - 8 -II Krisha Consciousness, Inc. v. Lee, 505 U.S. 672, 679, 112 S. Ct. 2701, 120 L. Ed. 2d 541 ( 1992)
alteration in original) (internal quotation marks omitted)). Second, the government may create a public forum " 

### by intentionally opening a
nontraditional forum for public discourse." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U. S. 788, 802, 105 S. Ct. 3439, 87 L. Ed. 2d 567 ( 1985). The courts will not " infer that 

### the government intended to create a public forum when the nature ofthe property is inconsistent
with expressive activity." Cornelius, 473 U.S. at 803.

Third, " 

### government property may be considered a nonpublic forum when it is not a traditional public forum and has not been designated by government as a forum for public
communication." Sanders, 160 Wn.2d at 210.

Here, Willis was convicted of begging on a freeway onramp. To determine whether the 

### onramp is a public forum,we consider "whether a `principal purpose' ofthe property is the free exchange of ideas, whether the property shares the characteristics of a traditional public forum,
and the historical use of the property." Sanders, 160 Wn.2d at 211. Applying this analysis we 

### hold that afreeway onramp is a non - public forum. 

### Freeway onramps are not, and have never been, principally intended as a forum for the exchange of ideas. They are components ofthe Interstate System and are meant to "' facilitate safe
and efficient travel 

### by motorists along the System' s highways. ' Jacobsen v. Bonine, 123 F.3d 1272, 1274 ( 9th Cir. 1997) (

### quoting Sentinel Commc' ns Co. v. Watts, 936 F.2d 1189, 1203 ( 1 lth Cir. 1991)). 

### Nothing inthe record indicates thatthe government intended to open the freeways to public discourse. 

### Allowing expressive activity in the freeway and its onramps would disrupt the 

### principal purpose ofthe freewaywhich is to facilitate travel. In fact, Willis's activities disrupted travelers because he entered the lane of travel and approached cars. Freeways and their onramps

545034 - 8 -II

are not traditional public forums, 

### nor have they been designated as forums for public communication. Therefore, we hold that freeway onramps are nonpublic forums.

B. Reasonable Restriction & Viewpoint Neutral Speech in nonpublic forums may be restricted if ` ... the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.' 

### City ofSeattle v. Huff, 111 Wn.2d 923, 926, 767 P. 2d 572 ( 1989) (

### quoting City ofSeattle v. Eze, 111 Wn.2d 22, 32, 759 P. 2d 366 ( 1988)) ( alteration in original) (internal quotation marks omitted). 4 " Viewpoint-neutral 

### regulations are those not in place ` merely because public officials oppose the speaker' s view. ' 

### Herbert, 136 Wn.App. at 264 (quoting Perry, 460 U.S. at 46). 

### It is reasonable to prohibit begging activity in a forum that is primarily meant for the
passage of automobiles. 

### When persons confront motorists to ask for money, they interrupt the 

### flow oftraffic and disruptthe efficient functioning ofthefreeway system. Begging onthe freeway 

### also creates significant safety risks, particularly where, like Willis,aperson enters into cars' lanes of travel.

LMC 09A.4. 020A is also viewpoint neutral. See Herbert, 136 Wn. App. at 264. Under 

### the ordinance, no one may beg on afreeway onramp, regardless ofwhythey are begging. In other words, even though the ordinance restricts the speaking ofcertain content,the ordinance does not concern itselfwith the speaker' s viewpoint. The ordinance evenhandedly regulates conduct, not 

### to suppress anyparticularviewpoint,butto reduce apotentially severethreatto public safety. We

4 Because Willis raised his constitutional challenges for the first time on appeal, we are mindful that the City was precluded from making a complete factual record to defend its positions. For 

### example, it never litigated the compelling interest the City had in enacting the ordinance. Nonetheless, we feel there are sufficient facts on the forum issue for us to decide the case.45034 - 8 -II hold that LMC 09A.4. 020A is a permissible regulation of a nonpublic forum, and we affirm the 

### superior court without reaching the City's arguments on cross -review. III. VAGUENESS. 

### Willis argues that LMC 09A.4.020A is unconstitutionally vague and violates the Due Process Clause of the Fourteenth Amendment. 

### The City argues that Willis has failed to provide facts to support his vagueness claim, and that even ifthe record were adequate to permit review of Willis' s claim, LMC 09A.4. 020A is not void for vagueness. We agree with the City and affirm the superior court. 

### Willis appears to challenge LMC 09A.4.020A as unconstitutionally vague on its face. 

### When it is alleged that a statute is wholly unconstitutional,the court looks notto the conduct of the defendant, but to the face ofthe statute to determine whether any conviction under the statute
could be constitutionally upheld. "' State v. Maciolek, 101 Wn.2d 259, 262 - 63, 676 P.2d 996 ( 1984) 

### quoting State v. Hood,24 Wn.App. 155, 158, 600 P.2d 636 ( 1979)).

An ordinance is sufficiently specific if two requirements are met: " First, criminality must 

### be defined with sufficient specificity to put citizens on notice concerning conductthey must avoid. 

### And second, legislated crimes must not be susceptible of arbitrary and discriminatory law
enforcement." City ofSeattle v. Webster, 115 Wn.2d 635, 642 - 43, 802 P.2d 1333 ( 1990); accord Kolender v. Lawson, 461 U.S. 352, 357 -58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 ( 1983). Here, both requirements are satisfied.

LMC 09A.4.020A very clearly describes what behavior is proscribed, i. e. " 

### asking for money or goods as a charity" while on a freeway onramp or other enumerated area. LMC 09A.4. 020( E). The ordinance gives citizens and law enforcement alike precise direction about
what conduct is forbidden, and where it is forbidden. Willis complains that the ordinance would45034 - 8 -II
sweep in " all charities asking for contributions ... 

### people requesting donations in support of political campaigns or interest groups ... [ and] people stranded on the side of a road. Br. of Appellant at 19. Even ifwe accept Willis' s position, it does not make the ordinance vague. Willis does not argue that LMC 09A.4. 020A " invest[s] a police officer with discretion to define the prohibited conduct." 

### Roulette v. City ofSeattle, 850 F. Supp. 1442, 1446 (W.D. Wash. 1994), aff'd, 97 F.3d 300 ( 9th Cir. 1996) ( emphasis added). Rather, " the ordinance itself defines what
constitutes an infraction." Roulette, 850 F. Supp. at 1446. LMC 09A.4.020A is not 

### unconstitutionallyvague, and we reject Willis' s vagueness challenge. IV. EQUAL PROTECTION 

### Willis argues that LMC 09A.4.020A discriminates against " individuals that need help or money" in violation of the Equal Protection Clause of the Fourteenth Amendment. Br. of Appellant at 21. 

### The City argues that Willis has failed to provide facts to support his equal protection claim, and that even if the record were adequate to permit review of Willis' s claim, 

### LMC 09A.4.020Adoes not impermissibly discriminate againstthepoor. We agree thatthe record 

### is not adequate to properly analyze Willis's equal protection claim, and we hold that we improvidently granted discretionary review ofWillis' s equal protection challenge. 

### As athreshold to any equal protection challenge, a party must establish that he or she is similarly situated with other persons in a class who have received different treatment under the

same law. State v. Osman, 157 Wn.2d 474, 484, 139 P. 3d 334 ( 2006). Willis argues that LMC 

### 09A.4.020Adiscriminates onthebasis ofpoverty. Butthe recorddoes not indicatewhetherWillis is impoverished. It is true that the municipal court found Willis indigent. But this finding does
not mean that Willis is below the poverty line — 

### only that he " lacks sufficient funds to prosecute

845034 - 8 -II

an appeal." CP at 115. 

### On this record, Willis cannot meet his burden to show that he is similarly situated with members ofthe allegedly targeted class. 

### Even ifWillis could showthat he was similarly situated with the impoverished,this record is not adequate to determine the merits of Willis' s equal protection claim. " A defendant must 

### establishthathe received disparatetreatment because ofmembership in aclass ofsimilarly situated individuals and that the disparate treatment was the result of intentional or purposeful discrimination." Osman, 157 Wn.2d at 484. Because Willis failed to raise the equal protection 

### issue in the municipal court, the record is insufficient for us to adequately determine the City' s intent or purpose for passing LMC 09A.4.020A. 

### Willis argues that the City failed to meet its burden; however, because he never raised it in the municipal court, neitherthe City norWillis had 

### the opportunityto present all ofthe facts necessaryto decide this issue. Evidence of the challenged statute' s disparate impact may establish the requisite discriminatory intent or purpose. 

### Vill.ofArlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S. Ct. 555, 50 L. Ed. 2d 450 ( 1977). Absent a " clear pattern, unexplainable on grounds
other than [the alleged class] ... impact alone is not determinative." Arlington Heights, 429 U.S.
at 266. 

### Here, nothing in the record speaks to the impact ofLMC 09.4.020A, or how it is being applied in the field. Willis' s allegation that "[ o]fficers are not arresting charitable organizations

or firefighters in violation of this law, only poor people," is without substantiation. Br. of Appellant at 22. On this record, we are unable to perform a disparate impact inquiry.

945034 - 8 -II We dismiss Willis' s equal protection claim as improvidently granted, and we affirm the superior court. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed for public record in accordance with RCW 2.06.040, it is so ordered.

I concur:

1045034 - 8 -II BJORGEN, A.C.J. ( concurring) — 

### The majority opinion holds, correctly,that the record is not adequate to properly analyze Willis' s equal protection claims. The majority opinion also concludes, however, that as a matter of law a finding ofindigency does not necessarily mean that 

### Willis is belowthe poverty line for equal protection purposes. Whether correct or not, a conclusion this elemental to the law' s treatment ofthe disadvantaged should not be made on an inadequate record and without thorough briefing. In Douglas v. California,the Court held, using an equal protection analysis, that those 

### who are indigent have the right to public counsel fortheir first appeal as a matter ofright. The evil, Justice Douglas wrote, is

discrimination against the indigent. For there can be no equal justice where the 

### kind ofan appeal a man enjoys " depends on the amount ofmoney he has." 372 U.S. 353, 355, 83 S. Ct. 814, 9 L. Ed. 2d 811 ( 1963) ( 

### quoting Griffin v. Illinois, 351 U.S. 12, 19, 76 S. Ct. 585, 100 L. Ed. 891 ( 1956)). 5 With this opinion, the Supreme Court recognized that 

### indigency,when coupled withthe restriction ofa right ofsufficient stature, is aclassificationthat 

### triggers enhanced scrutiny underthe equal protection clause. The result and reasoning of Douglas remain vital. In 2005 the United States Supreme Court, relying principally on Douglas, held that the due process and equal protection clauses also require the appointment ofcounsel for


### 5 The Supreme Court has recognized that due process and equal protection principles converge in 

### the Court's analysis ofthis family ofissues. Bearden v. Georgia, 461 U.S. 660, 665, 103 S. Ct. 2064, 76 L. Ed. 2d 221 ( 1983). 

### The Court stated that "we generally analyze the fairness of relations between the criminal defendant and the State underthe Due Process Clause, while we 

### approach the question whetherthe State has invidiously denied one class ofdefendants a substantial benefit available to another class ofdefendants under the Equal Protection Clause." Bearden, 461 U.S. at 665.

1145034 - 8 -II 

### defendants, convicted on their pleas, who seek access to first - tier review in the Court ofAppeals. Halbert v. Michigan, 545 U.S. 605, 610, 125 S. Ct. 2582, 162 L. Ed. 2d 552 (2005). 

### The Supreme Court has also made clear that poverty, standing alone, is not a suspect classification. Harris v. McRae, 448 U.S. 297, 323, 100 S. Ct. 2671, 65 L. Ed. 2d 784 ( 1980). However, 

### a classification based on poverty or wealth can become a suspect classification, subject to more rigid scrutiny than other classifications, when such classification interferes with a fundamental constitutional right. 16B AM. JUR. 2d Constitutional Law, § 904. This recognition was at work in Douglas and is 

### seen, although obliquely, in the Carolene Products footnote that laid one ofthe principal doctrinal footings for enhanced scrutiny underthe constitution: 

### There may be narrower scope for operation ofthe presumption ofconstitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those ofthe firstten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. • 

### United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4, 58 S. Ct. 778, 82 L. Ed. 1234 1938). 

### The analysis was further refined in Bearden v. Georgia, 461 U.S. 660, 661, 665, 103 S. Ct. 2064, 76 L. Ed. 2d 221 ( 1983), 

### which held that an indigent defendant' s probation may not be 

## revoked forfailure to payafine and restitution, absentfindingsthatthe defendantwas somehow responsible forthe failure or that alternative forms ofpunishment were inadequate. The Court 

### prefaced its Fourteenth Amendment analysis by stating that it has long been sensitive to the treatment of indigents in our criminaljustice system and citing a list ofits cases dealing with the deprivation ofthe rights ofan indigent person to counsel, appeals, and liberty. Bearden, 461 U.S. at 664 -

65.

1245034 -8 -II 

### Our state Supreme Court has walked consistently with these precedents. In State v. Phelan, 100 Wn.2d 508, 514, 671 P.2d 1212 ( 1983), the court applied an intermediate level of 

### scrutiny in determining thatjail time must be credited againstthe discretionary minimum term imposed under state law in effect before adoption ofthe Sentencing Reform Act of 1981, chapter 

### 9.94A RCW. Although our sentencing laws have changed, the court's rationale for imposing heightened scrutiny remains strong:

Physical 

### liberty, while not recognized as " fundamental ",is a basic human right and 

### the poor,while not a suspect class, cannot be said to be fully accountable fortheir status. Since a denial ofcredit for presentencejail time involves both a deprivation 

### ofliberty in addition to thatwhichwould otherwise exist,and aclassification based solelyonwealth,wewill applyan intermediate level ofscrutiny inthe present case. Phelan, 100 Wn.2d at 514. Thus, neither the " fundamental" status of the right nor the suspect" nature ofthe class are necessary for heightened scrutiny. 

### When one lacks the moneyto eat properly,the abilityto effectivelyask others for help becomes critical. 

### When one is homeless or offluctuating mental health, it may become 

### effectively impossible to navigate the mazes ofa social service systemthat attimeswould baffle aTheseus. Depending on one' s circumstances, the law's restrictions on . the ability to ask 

### individuals for help may ultimatelyjeopardize life, a constitutional interest among the most fundamental. This is not to argue that government may not ban aggressive panhandling on 

### freeway ramps. It is to argue thatthe courts should not make rulings touching on the scope of the class ofthe poor for equal protection or due process purposes without a penetrating eye for

1345034 - 8 -II 

### the facts ofpoverty in our nation and an acute review ofwhatthe case lawrequires inthe world as it is.

14