William H. Rehnquist: The next case is No. 86-1042, City of Lakewood versus Plain Dealer Publishing Company. Whenever you are ready, Mr. Fischer.
Henry B. Fischer: Mr. Chief Justice, and may it please the Court, this case involves an ordinance of the City of Lakewood that gives the mayor contract authority to rent the city's treeline property for the placement of news boxes. There are three issues that I would like to relate before the Court today. The three are jurisdiction, discretion, and insurance. Whether there is jurisdiction to pass on the merits of the case, which was pointed out at Page 43 of the brief, whether the discretion given by the ordinance to the mayor and the architect review board are so uncontrolled as to be unconstitutional, and the constitutionality of the insurance requirement. We will attempt to demonstrate the Plain Dealer did not apply for a permit, did not exhaust its administrative remedies and appeals, and did not properly test the ordinance to assert the issues before the Court to permit passing on the merits of the ordinance. We will try to demonstrate that the discretion is not uncontrolled, and that the insurance requirement, being content neutral and otherwise reasonable, is constitutional. Factually, the original Lakewood ordinance banned all structures, not just news boxes, all structures on the city property. Lakewood did not appeal. They wanted to permit the Plain Dealer to put their news boxes in. And they amended their ordinances twice to accommodate the Plain Dealer's placement of news boxes along the streets. The record shows that had the Plain Dealer applied, they would have secured the spaces they desired. The city engineer so testified, and the court also found so. There would have been no discretion of the mayor to have been applied and they could have had the news boxes installed since 1984.
Byron R. White: There was no discretion?
Henry B. Fischer: There wouldn't have been any discretion for the mayor to exercise if they had applied, because there was nothing wrong with where they wanted to place their news boxes.
Byron R. White: Well, what was the authority given to the mayor by the ordinance?
Henry B. Fischer: To rent the property.
Byron R. White: Well, but it was subject to his control, wasn't it?
Henry B. Fischer: It was subject to his determination. It is right in the ordinance. If the location was not causing a health or safety hazard... it is written right in the ordinance. If it is not a health or safety hazard. Also, if it is not causing a nuisance or not unduly interfering with the rights of the traffic, that the location would be all right. Those were the standards that were set up--
Byron R. White: And you think then if those were satisfied the mayor had to issue the permit?
Henry B. Fischer: --That's right. He was prepared to issue the permit.
Byron R. White: Is that what the court below found?
Henry B. Fischer: Yes, starting with Finding 16.
Byron R. White: What did he say? What did it say?
Henry B. Fischer: It said that the city was ready, willing, and able to issue the permits had they applied but the Plain Dealer had not applied for the permits.
Byron R. White: What did it say about the breadth of the ordinance? What was the court's below view of the mayor's discretion?
Henry B. Fischer: Well, the District Court found the ordinance to be constitutional all the way down the line.
Speaker: Yes.
Henry B. Fischer: So they found... the District Court obviously found that as to everything before it the mayor did not have unbridled discretion, that the discretion was appropriate.
Byron R. White: Yes, and then how about the... what did it say about the mayor?
Henry B. Fischer: That the mayor did not have... they found that the discretion of the mayor was not unbridled and did not find anything wrong with it.
William J. Brennan, Jr.: But there was the provision, wasn't there, that the mayor might deny or grant the application imposing conditions deemed necessary and reasonable?
Henry B. Fischer: That's correct, that he would not... he could not just deny it. If he denied it, he had to state his reasons, and there could only be three reasons that he could deny it. One would be location, that there was a health and safety hazard caused by it. The second reason that he could deny would be because it was not... they could not harmonize it through architectural review.
William J. Brennan, Jr.: Is that the limit of necessary and reasonable?
Henry B. Fischer: Necessary and reasonable? This, we are talking about contract authority, and just like many other contracts that have come before this Court, the legislative authority gives an individual authority to make contracts within certain guidelines. It gives them discretion for the nuts and bolts details. The nuts and bolts detail in this particular case could be what if the city had to do some repairs on the sidewalk or whatever? They would want to make some arrangements for the Plain Dealer to move their news box during that particular time. So that is the necessary and reasonable type of regulations we are talking about.
Byron R. White: Well, the Court of Appeals thought that the mayor was given too broad discretion.
Henry B. Fischer: That's correct, and our position is that that is one of the things we are here to--
Byron R. White: So we have to disagree with them as to the meaning of the ordinance?
Henry B. Fischer: --If you get to that beyond the jurisdiction, because we start with jurisdiction, and our contention is and has been, because of the appeal procedure that we have established, they should have applied for their permit first, and if they didn't like the conditions, which I submit to you I don't see any reason why they wouldn't have liked them, I think they would have had their news boxes out there since 1984, there would have been no problem.
John Paul Stevens: Mr. Fischer, did you make a jurisdictional argument in your jurisdictional statement, in your brief on the merits?
Henry B. Fischer: Yes, you can find it at Page 31 of our brief and essentially we cited the case of Greer versus Spock, that they should have... that the thing was not ripe for testing. We also asserted a defense in the District Court that they had this administrative remedy and that they should have asserted it.
John Paul Stevens: Page 31 of the blue brief?
Henry B. Fischer: Yes. The brief on the merits. Is it 43? Excuse me, it is 43. I'm sorry, Page 43 in our brief. The ordinance was written, I can tell you from firsthand because I wrote it, the ordinance was written so that the City of Lakewood could permit them to place their news boxes without interfering with the constitutional rights of other persons, e.g., Lovell, Schneider, other people that would want to use that property but couldn't, and the reason that they couldn't was because the Plain Dealer wanted to use it exclusively. We used the rental theory to overcome that. Yes?
Thurgood Marshall: I missed that page.
Henry B. Fischer: It is Page 43.
Thurgood Marshall: Forty-three.
Henry B. Fischer: Yes.
Thurgood Marshall: Thank you. [inaudible] Is that it?
Henry B. Fischer: Pardon?
Antonin Scalia: The discussion of the Gannett satellite case, is that what you are referring to on Page 43?
Henry B. Fischer: Gannett and also we led up to that with Greer versus Spock on Page 41... or 42.
Antonin Scalia: I see.
Henry B. Fischer: So PD did not apply. Instead, they sued to attack the ordinances instead, and I think the essence is that they want free, uninhabited use of the city property. That is where they are coming from. So, as to jurisdiction, as I indicated, the city had drafted this ordinance with the attempt to permit, not to play games with the Plain Dealer. We wrote this ordinance so that the Plain Dealer could place their news boxes, and we felt the appropriate theory for allowing this was a rental theory. And you could find in the finding 16 of the Court and I think it is Page A30 of the jurisdictional statements where that finding is, that they would have been able to get these news box locations, but instead they choose to attack the whole thing. The District Court would not receive any evidence of administrative interpretation. We offered the testimony of the mayor who actually requested the legislation to settle the lawsuit. The District Court, however, would not allow us to use that testimony as to what was intended. There are no applications. There is no real justiciable issue. It is not ripe because they did not apply it. Now, as to the standards--
Sandra Day O'Connor: If the ordinance is in fact setting up some kind of unlimited discretion in the mayor to grant or deny the permit, and if the court below was correct about that, then I assume jurisdiction would lie, wouldn't it, to make a facial challenge.
Henry B. Fischer: --I believe... I hate to compare cases, but I believe that we have set out far more guidelines than the Gannett case or the Greer versus Spock case. We have limited discretion tremendously compared to those. I don't think the statement could even be made. I hope I have answered your question on that.
Byron R. White: You are just disagreeing with the District Court.
Henry B. Fischer: Pardon?
Byron R. White: You are just disagreeing with the courts below.
Henry B. Fischer: I am disagreeing with the Court of Appeals.
Byron R. White: On the construction of the ordinance.
Henry B. Fischer: Right, not the District Court.
Byron R. White: Yes.
Henry B. Fischer: We have the provisions right in the ordinance as to, you can't make it any different height, you can't make it any different size, you can't put it next to a fire plug. All these things are spelled out. The only thing that is left for the mayor to do is to check to see if architectural review was done, to be sure that it is a safe location, and to put any other conditions... for example, the condition to move the box in the case they have to do construction. That is--
Byron R. White: We do have to disagree with the construction of the ordinance with the Court of Appeals?
Henry B. Fischer: --Yes, we do. We also believe that--
Byron R. White: On your jurisdictional argument.
Henry B. Fischer: --Under jurisdiction I don't believe they should have even reached it.
John Paul Stevens: Mr. Fischer, may I go back? You cited us to the findings on Page A30. You said they said they would grant the permission. As I read that, it only said they would grant them in the commercial districts, but not along Clifton Boulevard at the sites requested, all of which lie in the residential district.
Henry B. Fischer: That's correct, and the Court of Appeals sustained the City of Lakewood on that part of the ordinance that they could limit them to the commercial districts only. They also sustained that the rental charge could be made.
Byron R. White: So the residential issue is not here.
Henry B. Fischer: No, the residential issue is not before this Court. As to discretion, the ordinance specified--
Speaker: Let me... excuse me.
Henry B. Fischer: --Yes, sir.
Antonin Scalia: I know you--
Henry B. Fischer: Yes, Your Honor.
Antonin Scalia: --You keep trying to go along. I am sorry. You say there was nothing left for the mayor to do, but there is sort of a residual clause in the ordinance which says he can place, you know, whatever other conditions are reasonable, and there is no limitation on what that might happen to be.
Henry B. Fischer: I think that these are terms of art. I believe probably hundreds of contracts have come before this Court where the legislative body gives authority to somebody to make a contract, they don't spell out every last term, and as long as the intent of the ordinance, which is to allow the placement of the news boxes is affected, I don't see where there would be any problem.
Antonin Scalia: Well, they don't all deal with the First Amendment, either. I mean, that is what our case law says, that you have to be particularly careful and particularly specific when you are affecting First Amendment rights. That is just a pretty broad--
Henry B. Fischer: That's correct, and it could be only technical, minor things that would be reasonable and necessary, such as the relocation of the box in the event of construction, as the example that I have cited.
Antonin Scalia: --How do I know that?
Henry B. Fischer: How do you know that?
Antonin Scalia: How do I know that those are the only things that come within that language? What is the precise language again? I am looking for the ordinance here.
Henry B. Fischer: Such other conditions... it is C7, such other conditions as may be deemed reasonable and necessary by the mayor.
Antonin Scalia: Such other conditions as may be deemed reasonable and necessary by the mayor.
Henry B. Fischer: Right.
Antonin Scalia: It doesn't say technical conditions. That could mean anything in the world, couldn't it?
Henry B. Fischer: I don't believe that it does. I think the intent of the legislature was clear that they wanted the news box rental to go on, and it could be only the catch-all type clauses that you would throw into any contract to effectuate it, so that the city wouldn't be hamstrung. For example, with utility polls we have a right to ask them to move it and replace it during construction, and it was anticipated at the time that it was written that it was not going to contain every last nut and bolt, that there was going to be something for the mayor. We knew the Plain Dealer was going to apply, or thought they would apply, at least, and we knew that we could handle those sites. We didn't know what else was going to come down the line, and so we left it open so that the mayor could protect the health and safety. It is a police power residual clause, just to protect the property rights of the city.
Thurgood Marshall: And there are no standards.
Henry B. Fischer: Pardon?
Thurgood Marshall: The board hasn't adopted any standards yet, have they?
Henry B. Fischer: Are you talking about the architectural review board?
Thurgood Marshall: Yes.
Henry B. Fischer: I don't know whether they have adopted them now. This was shortly after the adoption--
Thurgood Marshall: Well, they hadn't at the time it was filed.
Henry B. Fischer: --They had not at the time it was filed.
Thurgood Marshall: They admitted they didn't.
Henry B. Fischer: That's right, because there had been nothing before them to work on so they had not proceeded to that point. The ordinance specifies size, height, location, eliminates considerable discretion. The most efficient procedure is right here as to what we have. If the mayor feels uncomfortable giving something that somebody asks they appeal to the council. The council has a legislative body that gives the contract authority wants to approve it that is the end of it. If they don't like what the council does with it, they go to the courts. And it is clear Ohio law that under Chapter 2506, the decision of that council cannot be arbitrary, it cannot be capricious, it cannot be illegal, it cannot be unconstitutional, and it cannot be unreasonable or unsupported by evidence. The mayor has to say why he does this or that or the other thing, and he has to give his reasons. I don't see what else we could do to make this any better, and certainly it is ten times... it is 100 times better than what you had in Greer versus Spock and also in the Gannett case. As to the mayor, we have the reasonable and necessary provision for relocation, as I indicated, and other things of that nature. The reasonable... we have the location standard provided, whether the architecture review board was done, the terms of the lease, and then plus the mayor must say if he is going to deny what the reasons are, and it has to be only for the reasons of a health and safety hazard, or there is a nuisance, or that they would interfere with the traffic. A lot has been said about censorship in this thing. These rental agreements are for one year. Now, during that one year term what is the mayor going to do, wait until there is an article in the newspaper and come up with some phony reason to cancel it? I doubt it. And then when they reapply for the next year, assuming that it is profitable to them and they want to continue with it, how would the mayor be able to come up with a good reason for denying when it was there the whole time? Either he has got a good reason for denying it or he doesn't. So I find it very difficult as to the censorship and I would point out that they would have had their permits if they had applied for them. It is clear on this reasonable and necessary and also these locational things that it is difficult to convene a council every time some new point comes up. That is why the mayor was given discretion, and I submit that this contract authority with guidelines plus discretion is very typical for Congress, for state legislatures, for city councils all across the country. As to the architecture review board--
Antonin Scalia: Excuse me. Suppose the mayor says one of the conditions I am attaching to this particular one is that it can only be usable by the public from 10:00 p.m. to midnight?
Henry B. Fischer: --Then the person... if he would put that on there, then I believe the person would have the right to go to the council, and by the way, under 901.1(a) he can go directly to the council.
Antonin Scalia: How can you go to the council? As I read this there is an appeal to the council if he refuses to grant or revokes a permit, but here he is granting it subject to this condition. Does that--
Henry B. Fischer: That's right. We are not talking about a rigid thing. We have... a negotiated contract is what it is. If they insist on a contract without that provision they want it 24 hours a day.
Antonin Scalia: --Then he has to deny it.
Henry B. Fischer: He would have to deny it. Then it would go to the council.
Speaker: I see.
Henry B. Fischer: However, I don't think that would even come up at all. As to architectural review, we are talking about the accepted and recognized architectural principles. They do have the power to make specific rules and expand their workbook so that there's more specifics. They never reached us at the time of trial because there was nothing before them, and here it is 1987, almost 1988. The Plain Dealer still hasn't applied. We are talking about properties. This has been all over the country. There's competition between these street commercial strips and the big shopping centers. If you had the big shopping center there would be no question, the private owner of that would tell the Plain Dealer where their news boxes are going to be, and that would be the end of it. We have the public streets, and Lakewood has got an aggressive program under HUD. The same thing has been going on across the country to try to make these commercial districts profitable, to make them aesthetically appealing, to make them vital. They spent millions of dollars on it. They are telling the store front owner, you have to fix your place up, your signs have to be reduced in size, and so forth, so we end the blight. The owner pays for that sidewalk in front of the store, and he has to repair it if it is broke. He pays tax to the city also. Here we want to put the news box there. The only thing the city wants to do is to harmonize that design and color with what the people have in the storefront. I think it is only fair and reasonable that this be done. That is the purpose of it, to harmonize the installation. Otherwise, what is the use of fighting all this blight and poor signage that is causing this blight? It will just end up that everybody is going to move to the shopping center, and you can just forget about the fight to save the commercial districts. As to the architecture review, we do have the book of standards, and there are, I submit that the Court has probably not had a chance to look at that, because it defies placement in the appendix, but there are several pages showing the architecture of Lakewood and what would fit in. I don't think that would be any particular problem. I think it would have been extended without any trouble. There are standards. They are not going to be able to say we don't like the article you wrote about our book. Therefore architecturally we are not going to approve anything for you. It just wouldn't happen. As to insurance, the Plain Dealer has stated they never had an accident with any of these boxes. I just find it hard to believe that none of these boxes ever come back dinged up. I would imagine some of them have.
Sandra Day O'Connor: Mr. Fischer, does the city require the furnishing of liability insurance and holding harmless for other similar devices that are placed on the streets, or is it just applicable to these news vending boxes?
Henry B. Fischer: There are no other comparable devices placed on the street.
Harry A. Blackmun: What about telephone booths?
Henry B. Fischer: The telephone booths--
Speaker: --and all the rest?
Henry B. Fischer: --The telephone booths are not the telephone booths of the telephone company. These are telephones such as the Supreme Court has right here in the court. The city wants them there. They are a replacement for those little red boxes that you used to have that if you push the button or open the door the only thing that would be reported is the location of something happening. They put these telephone booths, or not booths, they are actually just posts with telephones on them in the right-of-way as part of the emergency communication. That way for free a person can go and make a telephone call to the police department, to the fire department. They don't have to go to somebody's house if they need a tow truck or an ambulance. They don't have to call the police for that if they have their own private--
Sandra Day O'Connor: The city doesn't have any of these ordinary pay telephone booths?
Henry B. Fischer: --This is a pay telephone booth. I am not sure if all of them are like it, but the ones that the city has, you just dial 0... in fact now I guess it is 911 in Cuyahoga County, and you get the emergency service. So there is no payment.
Byron R. White: Are those the only numbers you can call?
Henry B. Fischer: For free. You can call... if you wanted to call your tow truck, you would have to place your quarter or whatever in there to make that call.
Byron R. White: Yes, or if you wanted to call your wife and say, I'm going to be late for dinner.
Henry B. Fischer: Excactly. You would have to place coins in it for that.
Sandra Day O'Connor: In any event, no insurance or hold harmless is required from the phone company?
Henry B. Fischer: No, because these are the city's. This is rented or owned by the city. It is telephone equipment of the city.
Sandra Day O'Connor: How about the bus shelters?
Henry B. Fischer: The bus shelters, I would have to categorize that as the city's property also. They have bus stops all over the city, and where there's not what they call an RTA, Regional Transit Authority shelter, the city has benches that they have installed and pay for themselves. Now, what they have--
Harry A. Blackmun: Well, is your transportation company public or private?
Henry B. Fischer: --It is public, and the people of Lakewood pay sales tax to subsidize the running of that bus service.
Harry A. Blackmun: Owned by whom? You say it is public. The greater Cleveland area or what?
Henry B. Fischer: Yes, it is the Cuyahoga County Regional Transit Authority. Everybody is taxed for that. Instead of Lakewood paying for the benches and having... we have the people maintain either one, but instead of them paying for the installation of those benches, RTA puts them in for free. That's the convenience for the residents. Everything else is on the utility polls. I don't believe--
Antonin Scalia: xxx telephone polls? What about the telephone polls?
Henry B. Fischer: --There is no--
Antonin Scalia: I mean, a car can run into a telephone poll.
Henry B. Fischer: --There is just one set of polls. Those polls that you see in the photographs are CEI.
Antonin Scalia: CEI owns them?
Henry B. Fischer: Electric Illuminating Company poll, and everything is on those polls. The wires that carry electricity for the street lights, the wires that carry electricity for the traffic lights, the telephone wires, they are all on there.
Antonin Scalia: And CEI is a private company?
Henry B. Fischer: They are a private company subject to regulation under... I guess it is called PUCO.
Antonin Scalia: Right. But they don't have to... you don't require them to ensure against liability from a poll falling down or--
Henry B. Fischer: They have an easement, and they do have to make repairs and relocate their--
Antonin Scalia: --But they don't have to insure the city against suits to the city from the negligent placement of the polls or something like that?
Henry B. Fischer: --No, these easements were granted a long time ago, and they are also there for the purpose of providing the city service, which is the telephone communication.
Antonin Scalia: And the wires on the polls, you have cable companies that have wires on those polls?
Henry B. Fischer: The cable company by other Acts are permitted to have wires on those polls also.
Antonin Scalia: And those wires could come down and hurt somebody, but does the cable company have to ensure the municipality against--
Henry B. Fischer: The cable television company does have to ensure. There is... this is not in the record, I would point out.
Antonin Scalia: --I am just curious. What about the telephone company. They have wires up there. Do they have to insure?
Henry B. Fischer: We do not have a requirement on them for insurance. And that is because they are providing the service to the city for the emergency communications network. They provide the other wires incidentally--
William J. Brennan, Jr.: Mr. Fischer?
Henry B. Fischer: --Yes, sir?
William J. Brennan, Jr.: There is presently in effect, is there not, an interim ordinance that replaces the one that we are addressing here?
Henry B. Fischer: That's correct.
William J. Brennan, Jr.: And the interim ordinance was adjusted to, what, to omit some of the provisions that were found by the Court of appeals to be--
Henry B. Fischer: They were temporarily suspended, and temporary measures put into place. We got a call from the Plain Dealer that said, we want to have those boxes, so we passed the ordinance. We are still waiting for their application.
William J. Brennan, Jr.: --I see.
Henry B. Fischer: But that ordinance will dissolve within a short time after the decision.
William J. Brennan, Jr.: By its own terms?
Henry B. Fischer: Yes, the council either... if the council takes other measures, depending on the decision in this case, or I think it is a 60-day period, it is dissolved. That was to preserve our position in this appeal.
Harry A. Blackmun: Mr. Fischer, I noticed some of the plaintiff's exhibits have in the photographs USA Today units. Did the Gannett people get permits?
Henry B. Fischer: No.
Harry A. Blackmun: And why... are they parties to the litigation?
Henry B. Fischer: They are not. The New York Times tried to join the suit but they were kicked out on an abstention grounds by the Sixth Circuit.
Harry A. Blackmun: You are not objecting to USA units?
Henry B. Fischer: They have not applied. We don't have anything to do with them. These USA Today units are in somebody else's city. They are not in the City of Lakewood.
Harry A. Blackmun: So that Exhibit 41 is not in the City of Lakewood?
Henry B. Fischer: Let me check.
Harry A. Blackmun: Or 40?
Henry B. Fischer: No, that is plaintiff's exhibit, and they put in a whole bunch of exhibits over our objection as to news boxes in other cities.
Harry A. Blackmun: In the city?
Henry B. Fischer: In other cities. We felt it was irrelevant, but the court let it in.
Harry A. Blackmun: So those boxes in those exhibits are not in your city.
Henry B. Fischer: No. There are boxes in our city.
Speaker: Yes, yes.
Henry B. Fischer: I think there were 16 sites where there are boxes. One was the RTA property. There are coffee shops, supermarkets. They are all over the city, within a quarter-mile--
Harry A. Blackmun: Are there any USA Today boxes in the city?
Henry B. Fischer: --Yes. Yes, there are.
Harry A. Blackmun: And what about them? Did they apply for a permit?
Henry B. Fischer: They have not seen fit to apply for a permit.
Harry A. Blackmun: Well, why don't you throw them out?
Henry B. Fischer: Well, they are on private property.
Harry A. Blackmun: Oh, private property.
Henry B. Fischer: Either on private property or public property that is not owned by the City of Lakewood, so we have no jurisdiction. We are not acting as owner as to those. It would just be if a zoning would come up that we would apply apply to that.
John Paul Stevens: May I ask on the... I gather probably the Plain Dealer has some on private property, too, don't they, or do they?
Henry B. Fischer: They have private property?
John Paul Stevens: They have these boxes on private property located within the city?
Henry B. Fischer: Yes, Your Honor, they have 16.
John Paul Stevens: Are those boxes subjected to any kind of architectural design, zoning requirements?
Henry B. Fischer: No. No, we have not subjected them to any of the requirements. I haven't looked at them as to... I don't think that it would apply to them since... because of where they are located, but it may be that we slipped up on that. I don't know. I don't think that... if we have, I think that it's because of their location it would not apply.
Sandra Day O'Connor: Mr. Fischer, what about the devices shown, for example, on Plaintiff's Exhibit 34? What is that box?
Henry B. Fischer: That is the junction box for the telephone company.
Sandra Day O'Connor: So it is owned by a private company, the telephone company?
Henry B. Fischer: Yes, it is, and it--
Sandra Day O'Connor: Do they have to provide insurance?
Henry B. Fischer: --No, they don't. That is there for carrying the lines not only of private but also of the city's communication system. This is part of the tradeoff for the consideration... actually, the city is getting the service on a lease basis. They may even make some money on some of these phones if people put coins in them. So this is part of the tradeoff that they would permit them because they are carrying emergency communications. There have been no rentals, no rentals of any city property that do not have insurance. As a matter of risk management, every contract that the City of Lakewood makes, unless they slip up, their intention is to have indemnification and insurance. Otherwise--
Speaker: [inaudible]
Henry B. Fischer: --Any contract.
Speaker: Any contract.
Henry B. Fischer: Any contract, whether it is--
Byron R. White: But not when you grant an easement.
Henry B. Fischer: --An easement is an interest in real estate, which is done by a deed easement, and these things were done... they had lighting and electricity probably before the days of the Depression, so there is nothing we can do about it.
Speaker: Right.
Henry B. Fischer: It is there. As to alternate... one other point here. The use of the sidewalk and tree lawn area has been exclusively used for the provision of traditional city services and utilities. There has been no structure erected there that does not provide the city with a service, and there is not such a thing there now. The traditional city services that are provided, newspaper and the sale of newspaper are not traditional city services. Therefore, the reason for having a classification. As to alternate channels of communication, the Plain Dealer can have a newsboy selling it their. Their newsboys do go up and down the street, up and down the driveways, and deliver newspapers. Their drivers come to the commercial areas. They unload--
Speaker: Mr. Fischer--
Henry B. Fischer: --Sorry.
William J. Brennan, Jr.: --Mr. Garner.
James P. Garner: Justice Brennan, and may it please the Court, I do not agree with too much of what Mr. Fischer said, but I believe he did recognize that we claim, at least, and he is absolutely correct, that this case involves a potential and a very serious potential for censorship. More specifically, the City of Lakewood originally tried an outright ban on the news racks, and the District Court found that to be unconstitutional. The city abandoned that route and enacted the ordinance--
Speaker: xxx the District Court was wrong about that?
James P. Garner: --If the District Court was wrong, the--
Byron R. White: And the city could have kept--
James P. Garner: --Could have appealed, yes... if I might be precise, Your Honor, we filed our complaint and a motion for summary judgment based on the illegality of the violation of our First Amendment rights with respect to the complete ban. The judge summoned us into chambers, told us what his decision was some time after the motion had been submitted, and said that he was granting the motion but was holding in abeyance for a period of six days the entry of the final order to permit the city if it chose to--
Byron R. White: --Let's assume that the city did have the constitutional right to keep the Plain Dealer from having any boxes on the city streets. Would that make any difference in this case?
James P. Garner: --I don't think so, Your Honor. Not to the issues before Your Honor. They do permit us there, and I think the precedents of this Court when you have this unfettered, complete discretion in city officials, not only the mayor but the architectural board, the precedents are clear that it is facially challenged on that ground. It is the potential for censorship which results from that which creates the constitutional confrontation which we feel must be resolved in our favor. So we feel the complete ban is not before Your Honors, and we feel that the discretion in the mayor, unfettered, the architectural board, no standards nor guides whatsoever, and this is not, we suggest--
John Paul Stevens: Mr. Garner, before you get all the way into the merits--
James P. Garner: --Yes.
John Paul Stevens: --I had missed the fact that the city was really making an independent jurisdictional argument which they have advanced here on the ground as I understand it that all you had to do was apply for these rental units and no doubt you could have had them.
James P. Garner: Well, I don't know whether we could have had them or not, Your Honor.
John Paul Stevens: But they say the District Court so found.
James P. Garner: If the mayor found that no reasonable reason to deny us or he found no necessary reason to deny us, presumably we might have had our permit, but it is the potential for censorship here. We are talking for the moment about the City of Lakewood, but if I could make a short excursion outside the record, in the city... in the County of Cayuga, where Cleveland is located, there are 73... 73 separate municipalities. Now, whether or not Mayor Sinagra would have readily issued the permit to the Plain Dealer... by the way, he was reelected yesterday, and he serves another term--
Speaker: [inaudible]
James P. Garner: --Endorsed by the Plain Dealer, I might add, Your Honor. 0 [Generallaughter.]
John Paul Stevens: That is why you are sure you will get your boxes. 0 [Generallaughter.]
James P. Garner: Sir? I'm sorry?
John Paul Stevens: That is why you are sure you will get your boxes. 0 [Generallaughter.]
James P. Garner: The experience that the Plain Dealer might well anticipate from some of the other municipalities where there have been rather detailed investigations and stories in the Plain Dealer with respect to city affairs, I think there would be serious question if this unfettered discretion, and there was no right by the Plain Dealer really effectively to go anywhere. The mayor says, no, that's it. He says safety, I'm not satisfied, that's the end of it. The architectural board said it's not pretty enough. That's the end of it. We have no place to go.
Sandra Day O'Connor: I thought there was an appeal process.
James P. Garner: Yes, Your Honor, but I think the appeals process when we are talking about First Amendment rights is insufficient. I think the... for example, this case started in 1982. Here we are almost to 1988. I think the precedents of this Court are ample to support the proposition that when First Amendment rights are denied, that some kind of an appellate process is sufficient to rectify it. It probably would be anywhere from two to four years to obtain a complete administrative and judicial review in the State of Ohio through the Ohio Supreme Court, and that we submit just does not square with the notion of First Amendment rights.
Antonin Scalia: Mr. Garner-- --That could happen... that could happen if you had precise standards and you were denied and you just claimed the mayor made a mistake, and you had to go up on appeal, where you might not hear for two or three years.
James P. Garner: If we... well, if we had precise standards I don't see there would be much to be arguing about.
Byron R. White: Well, whatever the standard is, somebody can misapply it.
James P. Garner: I think in this case news racks are capable of very precise legislation. We are not talking about something nebulous about words that might incite somebody to a riot or something. We are talking about a news rack. Everyone knows what they look like. Everyone knows how big they are. If the mayor or the city council feels that five feet is the distance it must be away from a fire hydrant, so be it. Five feet, not four, five or more.
John Paul Stevens: Yes, Mr. Garner, but suppose the regulation is no more than one news rack on any corner or whatever it might be, and then there is some dispute about which one of the competing newspapers wants that corner.
James P. Garner: On numbers, Your Honor, the City of Lakewood has a requirement of no more than three abreast at this time or at any one location, three abreast. At this time or at the time this commenced the Plain Dealer did not complain about that, feeling that that is within the one of what is reasonable in the City of Lakewood. Whether that would be true in another city, I don't know, Your Honor. It would depend on, I believe, the application of some of the tests developed by Your Honors in other cases, the Rockford school case, the Grayned test, the test of compatibility. If five is compatible, then that is right. Some cities have a great many more newspapers to be distributed. Coming back to your precise question, I think a limit of one would be suspect for two reasons. One, I think it is too restrictive, and secondly, it does offer perhaps even a pretextual use of--
Speaker: Well, we can't even three do that. The record suggests--
James P. Garner: --which... a precise selection of which publisher can occupy that spot.
John Paul Stevens: --The record suggests U.S. News and World Report gets one, New York Times another, and the Plain Dealer the third. Supposing a fourth paper comes in, and they say, well, we have already used up all the three stand slots?
James P. Garner: Well, they would have to move... they would have to move down the street a ways. They are not forbidden anywhere else in the city. Just, they can't attach it--
John Paul Stevens: Well, supposing they make a map, and on the map they list all the permissible sites, and no more than three at any one of these sites, and you people all get these three, and a fourth paper comes in. I guess they are just out of luck.
James P. Garner: --I don't believe, Your Honor--
Speaker: Real precise standard.
James P. Garner: --the map listed all the permissible sites. I believe what is in that--
John Paul Stevens: No, I am giving you a hypothetical.
James P. Garner: --Oh.
John Paul Stevens: A hypothetical ordinance. You get all the standards you want in, and they are very, very definite, but these are the sites, no more than three at any one of these 30 or 40 sites, they are all taken, and somebody else comes along and said, we would like a site.
James P. Garner: If we are talking about the traditional public forum here, which is, of course, the entire sidewalk, an entire block long, and it is difficult to imagine that three boxes would occupy the whole block. They would occupy that portion of the block, but the rest of that block would be available for other publications.
John Paul Stevens: And suppose they then say, well, since we can't accommodate all four without having what we consider visual blight by too many of these, we just decided not to allow any.
James P. Garner: I think that a complete ban on boxes... is that Your Honor's question--
John Paul Stevens: Yes.
James P. Garner: --anywhere in the jurisdiction?
John Paul Stevens: I am just really not sure that isn't some--
James P. Garner: Again, I don't believe it is in the case, Your Honor, but I think it would clearly be unconstitutional.
Sandra Day O'Connor: --What case from this Court do you cite for that conclusion?
James P. Garner: The exercise of First Amendment rights?
Sandra Day O'Connor: No, no, that a flat ban on the renting of space for vending machines would come--
James P. Garner: We don't agree that we are renting space. That is the city's characterization of what is occurring here, Justice O'Connor.
Sandra Day O'Connor: --I am just asking what case you rely upon from this Court that space on the sidewalk must be permanently set aside for the newspaper's vending machines.
James P. Garner: We don't... I can't quite agree with your characterization of permanently set aside.
Sandra Day O'Connor: Stop disagreeing with my characterization and give me a citation, if you would.
James P. Garner: I think any of the cases, Lovell, or any of the cases, Shuttlesworth, Coxby, Louisiana, any of the cases which talk about the exercise of First Amendment rights.
Sandra Day O'Connor: I just didn't find any of those directly relevant to the giving up of space on a city sidewalk or otherwise for a permanent device of some kind.
James P. Garner: I don't believe that it is a permanent giving up. I said we--
Byron R. White: It is not hourly, is it?
James P. Garner: --No, no, it is not hourly, Your Honor.
Byron R. White: It isn't yearly either.
James P. Garner: Well, it could be whatever--
Byron R. White: Well, if you quit--
James P. Garner: --whatever is reasonably necessary, Your Honor.
Byron R. White: --If you didn't get enough nickels and dimes in it, you would move it, I suppose.
James P. Garner: I think that's probably correct.
Byron R. White: Up until that time, it is going to be there.
James P. Garner: Not if there is a legitimate or logical reason for moving it, street repairs, parade going to occupy the property, whatever reason.
Byron R. White: Could I ask you on the discretion--
James P. Garner: Yes, sir.
Byron R. White: --end, take the city... is it the city architect, architectural board?
James P. Garner: Yes.
Byron R. White: What if the ordinance said, the design of these 25 by 50 inch boxes shall be the design specified by the architectural board, and the architectural board meets, and it publishes a specific design. If you want a news box, you would have to have it this way, no other way. And there is a... you wouldn't have any objection if in the ordinance it says 25 by 50 and the design is as follows, colon, and it has a drawing in it of the precise--
James P. Garner: If... two or three observations, Your Honor. One, if it is a box, if there is a box available that could meet the specifications, obviously.
Byron R. White: --Well, you would have to make one.
James P. Garner: Well, I am not sure that would be possible. You might be coming back to the--
Byron R. White: Well, then you are back to whether there is a constitutional right to get on the sidewalk. What about my... what if it were perfectly feasible to make a box precisely to conform with the architectural board's specifications? Would you say that that is uncontrolled discretion?
James P. Garner: --I don't think if it is precise and it is reasonable and it is available, I can't say that it is necessarily wholly unreasonable.
Byron R. White: But having the architecture board have so little bit of discretion even gives you a little bit more room. It is more favorable to you.
James P. Garner: Having the architectural board with this unlimited discretion permits them to turn down any box that they desire to turn down, no matter what the publisher is, whether it is because of the box or whether it is a pretextual reason.
Byron R. White: I would think you would rather have it this way and have the architectural board specify in detail what your box has to be.
James P. Garner: We would be pleased and, I think, would have been pleased had we been able to arrive at a complete agreement with the City of Lakewood with respect to specificity in the ordinance from top to bottom. We failed in that--
Byron R. White: Did you ever ask the architectural board what kind of a box they might approve?
James P. Garner: --They had no idea. They had never considered the matter. The testimony in the record says they--
Byron R. White: Well, did you ask them?
James P. Garner: --They were asked at the trial, yes.
Byron R. White: But you never showed them a box?
James P. Garner: No, no. We are... as I believe we mentioned earlier, Your Honor, we feel we have the opportunity or the right to test this uncontrolled discretion facially.
William J. Brennan, Jr.: Mr. Garner, I notice that the Court of Appeals seems to rely very heavily on Staub and City of Baxley. Was there an appellate process in that case?
James P. Garner: I don't recall, Your Honor.
John Paul Stevens: Mr. Garner, can I ask you, supposing we were to affirm, I may have the facts a little wrong, but the Court of Appeals enjoined the enforcement of the ordinance in total, didn't they?
James P. Garner: Not entirely. It separated the ban in areas zoned residential, and struck down the rest of it really three... they found three flaws, three constitutional flaws, and they struck down all of the rest except for the residential ban because it was not separable.
John Paul Stevens: Did they strike down the portion of the ordinance that authorizes the city to rent the property for this purpose?
James P. Garner: They struck that down, yes.
John Paul Stevens: So if we just were to affirm, there would in effect be no ordinance pertaining to this subject on the books.
James P. Garner: They have enacted a new ordinance.
John Paul Stevens: Oh, they have a new ordinance.
James P. Garner: Yes, sir. Yes, Justice Stevens. In 1987, earlier this year, I believe, they enacted the new one.
John Paul Stevens: What happens through this lawsuit if we get another ordinance in place? I thought the new ordinance was just temporary, pending the resolution of this lawsuit. Is that not right?
James P. Garner: I don't believe so, Your Honor. What it says is that it suspends the operation of the mayor's discretion and the architectural board's discretion. Those are not part of the new ordinance. The unlimited discretion.
Byron R. White: Suspends? You mean until when?
James P. Garner: Until some 60 days after this Court reaches its decision, or until--
Sandra Day O'Connor: So it is just temporary, pending the resolution of the case?
James P. Garner: --Well, those particular points are, yes. The rest of it is all in position.
William J. Brennan, Jr.: Well, Mr. Garner, was the idea that if this Court affirmed, then after 60 days would not the interim ordinance continue in effect?
James P. Garner: Yes. That is my understanding, Your Honor.
Thurgood Marshall: Could that be interpreted as a threat?
James P. Garner: As a threat?
Thurgood Marshall: Yes.
James P. Garner: Well, I don't know what would happen, depending on what this Court does, obviously. I think they might very well go back to where they started, the complete ban.
Thurgood Marshall: Well, they are trying to influence this.
James P. Garner: Yes. Well, I don't know, Your Honor.
Thurgood Marshall: For what other reason would they pass it?
James P. Garner: Would they pass it? Well--
Thurgood Marshall: For what other reason? Because the Plain Dealer wanted their boxes on the street. But I am trying to understand, the substitute ordinance is now in effect pending the outcome of this case?
James P. Garner: --The substitute ordinance is substantially in toto in effect. The portions that are not in--
Speaker: Without the objectionable feature?
James P. Garner: --Excuse me.
John Paul Stevens: Without the objectionable features.
James P. Garner: Yes, that's right.
John Paul Stevens: Well, then, while that ordinance is in effect, have you gone ahead and installed some boxes?
James P. Garner: No, we have not, Your Honor.
John Paul Stevens: Why not?
James P. Garner: Because if--
John Paul Stevens: Because, you know, time is of the essence in these First Amendment issues, I understand. You can't wait for an appeal. 0 [Generallaughter.] You had better get those boxes out there.
James P. Garner: --Well, Your Honor--
Antonin Scalia: Perhaps you don't have enough confidence in your case here. 0 [Generallaughter.]
James P. Garner: --We thought, as I suggested earlier, we think this is a very important case, and from the Plain Dealer's immediate standpoint certainly--
John Paul Stevens: In other words, you'd rather win the lawsuit than get the boxes out there.
James P. Garner: --Yes, that's correct, Your Honor. We think we are entitled to a decision that we obtain... that we obtained from the Court of Appeals, and we did not appeal this case. We were satisfied, or we did not seek certiorari from this Court. So what we want is what the Court of Appeals ruled. We think that is satisfactory, and that is satisfactory whether we go to the other 73 other municipalities.
John Paul Stevens: And that's because you're concerned about the 79 other municipalities, I gather.
James P. Garner: I'm sorry, Your Honor.
John Paul Stevens: That's because of your concern about all the other municipalities.
James P. Garner: Yes. The Plain Dealer's concern about all the other--
Thurgood Marshall: The Plain Dealer operates them all?
James P. Garner: --All 73, yes, and more. That's just the one county, now. That's just the one county. There are a number of other municipalities in the surrounding counties. Oh, yes. And that is the reason that we are here, because Mr. Fischer brought us here, but that's the reason that we urge this Court.
Byron R. White: Are any other news boxes on the street?
James P. Garner: In Lakewood?
Byron R. White: Yes.
James P. Garner: Not to the best of my knowledge, Your Honor.
Byron R. White: But no one has taken advantage of this interim ordinance?
James P. Garner: As far as I know, that's correct.
Byron R. White: Because if there hadn't been this interim ordinance, there wouldn't have been any ordinance in effect at all after the Court of Appeals' judgment.
James P. Garner: That's correct. That is correct. Anybody would have been free to--
Byron R. White: And then if you had wanted to get on the street, you would have a little problem getting your boxes on the street without an ordinance.
James P. Garner: --Without an ordinance.
Byron R. White: Or would you just say we are going to put them up because we have the constitutional right to be there?
James P. Garner: I think that's... I can't speak... yes, it is true, Your Honor. In a number of cities there are no ordinances whatsoever dealing with news racks.
Byron R. White: Yes, but they don't object to the newspapers being there.
James P. Garner: Right, they acquiesce in it, correct.
John Paul Stevens: They acquiesce in the unfettered discretion of the mayor, I presume. 0 [Generallaughter.]
James P. Garner: Well, if it is unfettered, it is unexercised as well.
Byron R. White: Well, he exercises it by not objecting.
James P. Garner: Yes, Your Honor.
Harry A. Blackmun: Well, they are out in front of this building. You can buy the... whatever you want out there, except the Plain Dealer. 0 [Generallaughter.]
James P. Garner: Well, I think, Your Honor, there is probably more call for different publications in the City of Washington certainly than the City of Lakewood, Ohio. A great many more publishers want their newspaper here in the nation's capital than they do in the City of Cleveland or its suburban areas.
Harry A. Blackmun: Of course, that doesn't mean it wasn't litigated. It was, a few years ago.
James P. Garner: Yes. With respect to the insurance I would say... make a couple of observation. One has two parts to it. One is the indemnity which, as I read it, is so broad that the Plain Dealer or the press, small "p", is called upon to indemnify the city for things that may even be the city's fault if there is a news rack even collaterally involved one way or another, and I think that kind of provision, without respect to the First Amendment, would be abhorrent. More importantly, the insurance, from the questions of the Court, I believe they were all directed toward the fact that the requirement is solely for insurance to be provided by the newspaper publishers who use these news racks, the other privately owned utilities. Nobody else is called upon for the same thing. We think that quite clearly singles out the press in an unconstitutional--
Sandra Day O'Connor: Well, the city takes the position, I guess, that it is renting the space for the vending devices and that it would charge... require the furnishing of insurance for anyone who rented space from the city.
James P. Garner: --Yes. May I state my view of what I think the relationship is of the Plain Dealer or a publisher with its rack on the street and the city? We don't view it as a possessory interest of any sort, nor do we view it as a property right. The word "rental" connotes to me some sort of a passage of an interest in real property, paying money for a right to do something. It is assignable, it is this, it is that. What I conceive or perceive we have is a First Amendment right, the same as it would if we had a news hawker out there. A news hawker can stand there. We have a First--
Sandra Day O'Connor: What if we think that it is different, that it is a physical occupation of city property, and that that is distinguishable from allowing people to walk on the sidewalk and sell newspapers.
James P. Garner: --Yes. Oh, there is no question about that, that this is a fixed device, it is there, it doesn't get cold, it doesn't go to lunch. It is there to provide newspapers to the public at all hours--
Speaker: Twenty-four hours a day.
James P. Garner: --Twenty-four hours a day. We think it is--
Sandra Day O'Connor: Week in and week out, month in and month out. Now, what if we think that is different?
James P. Garner: --Well, I think it is different, Your Honor. I think it is different in particular in the respect that it far better serves the public that may desire to buy newspapers. It serves them 24 hours a day.
Sandra Day O'Connor: But you assert that it is not possible under the First Amendment for the city to require indemnity insurance for those devices? I think that is a remarkable proposition.
James P. Garner: No, I am not suggesting that, Your Honor. No. No, I am not suggesting that. I think the evil was the one that was suggested by the earlier questioning, and that is the singling out of the press.
Sandra Day O'Connor: What if they say that for every situation in which they are granting a permit to physically occupy city property they are going to require that type of insurance?
James P. Garner: Do they do the same with the electric utility?
Antonin Scalia: Too late, they say. Water over the dam. Before the city ever thought of such things, they had given an easement already.
James P. Garner: Well, I think the city council... certainly that could be rectified, Justice Scalia.
Antonin Scalia: Not if the easement has been granted already, no.
James P. Garner: Well, I think that... I don't know the answer to that, Your Honor. It depends a lot on statutory... state statutes which establish the relationship of some of these municipalities and the utilities, and I am not an authority on that subject, but if there were a demonstrated need that there were safety hazards involved with the telephone polls, I am sure one way or another a city would be successful in obtaining insurance coverage to protect it. I might add that the record is barren here to show that there has ever been a safety factor with respect to news racks. It just doesn't exist.
Antonin Scalia: Let's assume, carrying Justice O'Connor's question further, that we do think that this is somehow a property interest and that the city can lease these stations in a way. Is it your position that every provision of the lease contract must be spelled out in the ordinance and there can be no variation from one contract to another?
James P. Garner: I think the ordinance could be very specific, Your Honor.
Antonin Scalia: I didn't ask whether it could be very specific. I asked a simple question, must every provision of the lease contract be in the city ordinance, including the price, and the mayor would not have the ability to alter the price from year to year. Would that be too much discretion? I mean, I am trying to think of how you could set up a sensible system. It doesn't seem to me the city is being vindictive or coming down on the press which endorses their mayor or anything like that. It seems to me they are trying to do a reasonable thing, and I'd like to know, what do you suggest they could have done differently? For instance, that provision... such are the terms and conditions deemed necessary and reasonable by the mayor. Well, I can think of a million things that could come up, why in one particular location you have to add an additional condition besides the ones you normally think of, this location is near a school or who knows what? I think it seems to me quite reasonable to put in that residual clause. Now, you don't like it. What would you have said instead?
James P. Garner: Well, I don't like it because of the threat of censorship, Your Honor. What would I have said? It was something considerably less than that. I think that--
Antonin Scalia: Such as what?
James P. Garner: --Such as the... if there is in the future there arises a safety factor demonstrated to the satisfaction of whoever, the matter will be brought to the attention of the publisher and it will be discussed with the publisher, whatever. I don't know, Your Honor.
Antonin Scalia: I don't know either, and that is part of the problem. I mean, it seems to me that what counsel for the city raises is a reasonable thing. You need a little bit of give if you are writing God knows how many contracts for stations all over the city. They won't necessarily be identical. Now, how can that all be handled and specified in one city ordinance?
James P. Garner: Well, I don't know of anything that the... in the four or five years that we have been talking about this that the city has suggested they would add, except one thing. They said they forgot to put in a prohibition against placing a rack in a handicapped... or a news rack in a handicapped ramp. So the new ordinance has that in. One possibility, obviously, Your Honor, is amending the ordinance when something occurs to them. If there is an emergency, if Halloween a prankster moves a box out in the middle of the street, obviously the local police are going to handle the situation. But I think that this is an area where you are dealing with boxes that everybody can identify. They understand them. I think you can be absolutely specific. Except for the direst of emergencies, most anything that turns up subsequently could be very well handled at the next regular or special meeting of the council.
John Paul Stevens: May I ask you a question on another subject? Are there any ordinances either in Cuyahoga County that pertain to the retail sale of newspapers, magazines, and the like on public property? I know in a lot of cities there are public newsstands that are operated by human beings rather than these inanimate objects. Are they generally the subject of ordinance?
James P. Garner: So far as I know, there are no public newsstands on public property in Cuyahoga County.
John Paul Stevens: In that area. I see.
James P. Garner: I know of none. Unlike Washington. I don't recall ever having seen one.
Thurgood Marshall: Bus stations. The railroad station.
James P. Garner: Oh, yes, the stations.
Thurgood Marshall: The airports.
James P. Garner: Bus stations have news racks. The bus stations do. The railroad station does. Any number of the RTA stations, the Rapid Transit stations, all those do. Yes, Your Honor. I believe, Your Honors, we have covered everything that I desire to bring to the attention of the Court, and it is obvious that we urge affirmance of the decision of the Court of Appeals in its entirety. Thank you.
William H. Rehnquist: Thank you, Mr. Garner. Thank you, Mr. Fischer. The case is submitted.