Peachlum v. City of York PA

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-19-2003
Peachlum v. City of York PA
Precedential or Non-Precedential: Precedential
Docket No. 02-2977
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PRECEDENTIAL
Filed June 19, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2977
SYBIL PEACHLUM,
Appellant
v.
CITY OF YORK, PENNSYLVANIA; CITY OF YORK BUREAU
OF PERMITS AND HEALTH LICENSING; FRANCIS M.
NEWHAMS, in his capacity as Director of Bureau of
Permits and Health Licensing; CHARLES H. ROBERTSON,
in his official capacity as Mayor of the City of York,
Pennsylvania
Appeal from the United States District Court
For the Middle District of Pennsylvania
D.C. No.: 99-cv-02061
District Judge: Honorable Yvette Kane
Argued: April 10, 2003
Before: BARRY and ROSENN, Circuit Judges,
POLLAK, District Judge*
(Filed: June 19, 2003)
* Honorable Louis H. Pollak, Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by
designation.
2
Mathew D. Staver (Argued)
Liberty Counsel
210 East Palmetto Avenue
Longwood, FL 32750
Counsel for Appellant
Donald B. Hoyt (Argued)
Steven M. Hovis
Office of City Solicitor
One Marketway West, 3rd Floor
York, PA 17401
Counsel for Appellees
OPINION OF THE COURT
ROSENN, Circuit Judge.
This appeal primarily concerns the ripeness of facial and
as-applied First Amendment challenges to a municipal
ordinance regulating the size, content, and appearance of
lawn signs in residential districts.1 Sybil Peachlum sued the
City of York, Pennsylvania, for declaratory and injunctive
relief and damages for attempting to bar her from posting
a freestanding 3-1/2 foot by 5 foot sign in her front yard.
The sign depicted an anthropomorphized peach holding a
newspaper with the headline: “Peachy News. Jesus is Alive.”
Neon lights, frequently illuminated, rimmed the sign.
Peachlum filed her suit in the United States District
Court for the Middle District of Pennsylvania, challenging
the First Amendment constitutionality of the ordinance,
both facially and as applied to her. She further alleged that
the ordinance’s application to her violated the Free Exercise
and the Equal Protection clauses of the Constitution.
Lastly, she asserted that the City, by insisting that she pay
a $350 fee in order to appeal the decision of the City’s
Zoning Officer (ZO) to the Zoning Hearing Board (ZHB),
violated the Due Process clause.
1. The ordinance also regulated signs in commercial and industrial
districts.
3
The District Court, observing Peachlum’s failure to appeal
the determination of the ZO to the ZHB, which, under the
York municipal code had the final say on disputes involving
the ordinance, dismissed the suit as unripe. Peachlum
timely appealed. We vacate the Order of Dismissal.
I.
Over a period of nearly ten years, the City had repeatedly
cited Peachlum for numerous separate violations of the
ordinance, including its bans on directly illuminated signs
and on freestanding business signs in residential districts.
The ordinance, however, pursuant to § 1308.02, exempted
certain types of signs from its strictures, including:
directional signs, resident identifiers, and flags. Various
forms of commercial signs, including those advertising
homes for sale or garage sales, were also exempted, as were
holiday signs and memorial or historical signs.2
Unexempted signs had to comply with all other sign
regulations, and, moreover, required a permit even if they
did not run afoul of any of the ordinance’s express
prohibitions. Hence, signs falling under the exemptions
provision could be directly illuminated without incurring
penalty and could also be maintained without a permit: “No
permit shall be required and the regulation of this article
shall not apply to any of the [enumerated exempted types
of signs.]” Peachlum, according to the City, did not qualify
for an exemption.
Peachlum now challenges the First Amendment
constitutionality of the ordinance on the grounds that (1) by
exempting certain forms of speech based on content, it is
overbroad; (2) by forbidding, without a permit, various
forms of lawn signage, the ordinance simply forecloses too
much public speech; (3) the terms of the ordinance, in
2. Peachlum’s dispute with York spans two different iterations of the sign
ordinance. A new version, § 1309, was enacted in 1995 and replaced
§ 1308 (§ 1308.02, the exemptions provision, became § 1309.04);
although most of the prohibitions and allowances of the ordinance
remained constant, an exemption was added in the later version for
signs with personal expressions of no more than two square feet and for
signs of religious significance.
4
particular the exemptions provision, are too vague for a
reasonable person to comprehend; and (4) by requiring a
permit before the posting of certain types of signs, the
ordinance is a prior restraint.
In late 1993, Peachlum first erected her sign on her front
lawn in York. The City’s ZO advised her to remove it and
cited her for violations of §§ 1308.02, 1308.06(a), and
1308.14(a) of the sign ordinance in effect at that time.
Specifically, she was cited under § 1308.02 because a
permit was required before placement of any type of sign
other than those listed therein; under § 1308.06 because it
did not fall within a list of enumerated types of signs that
were permitted within residential districts3; and under
§ 1308.14(a) because her sign was directly illuminated in a
residential district.
She then applied for a permit pursuant to § 1308.02 and
that was denied; the ZO held that he could not issue a
permit for a sign which was independently unlawful under
§§ 1308.14(a) and 1308.06(a) of the ordinance. Peachlum
never appealed any of these ZO enforcement actions to the
ZHB, although she was informed of her right to do so on
the cease and desist notice. She subsequently complied
with the order to remove the sign, but re-installed it in late
1994. In 1995 the City filed a civil complaint under the
ordinance, charging Peachlum with violations of
§§ 1308.14(a) and 1308.06(a). A District Justice entered
judgment against her and assessed a fine in the amount of
$539.4
Later in 1995, the City enacted a slightly different version
of the sign ordinance, § 1309, replacing §1308. It rewrote
§ 1308.02 as § 1309.04, which, in addition to most of the
old exemptions, newly exempted signs of personal
expression of no more than two square feet in area, and
3. Section 1308.06 permitted the following signs in residential districts:
signs advertising wholesale produce sales; professional signs;
announcement boards; unobtrusive business signs; signs promoting
political candidates; and temporary signs advertising upcoming events.
4. It does not appear that Peachlum meaningfully contested the matter
before the District Justice at this time or in any subsequent state court
proceeding.
5
signs of religious significance. At no time was Peachlum’s
sign deemed to fall within these new exemptions.
Despite all the City’s legal actions, Peachlum kept up her
sign. In May 1998 the City’s ZO again issued a cease and
desist order, based on provisions of the modified ordinance.
The cease and desist order alleged that she was in violation
of the following provisions of the ordinance: Section
1309.09(a)(2) allowed the placement of a “nonilluminated
announcement or professional sign” only if the sign was
fixed flat against the building or inside a window with the
size of the sign not to exceed two square feet. Section
1309.09(a)(4) banned illuminated signs in residential
districts; § 1309.09(a)(5) limited the size and position of
freestanding business signs in residential districts; and
§ 1309.09(a)(6) forbade home office signage in a residential
district.5
In mid-1998, the City filed another civil complaint
against Peachlum, based upon alleged violations of
§§ 1309.09(a)(4) and (5) of the City ordinance. These
sections pertained, respectively, to the illumination of signs
in a residential district and to the maintenance of
freestanding business signs in a commercial district. In
September 1998, a District Justice entered judgment
against Peachlum and fined her $537. The sign remained
posted and, in April 1999, the ZO issued another cease and
desist order for zoning violations.6 Specifically, he found her
in violation of §§ 1309.09(a)(4) and (5).
5. Peachlum was also alleged to be in violation of several other provisions
which primarily concerned the maintenance of a commercial
establishment in a residential district. These alleged violations do not
concern us. We are not concerned with whether Peachlum was in
violation of ordinance provisions pertaining to whether she ran a
business out of her home. It is, however, relevant whether Peachlum’s
sign was itself commercial, inasmuch as commercial speech may be
subject to a stricter ripeness test than non-commercial speech. But our
review of the record here shows scant evidence that the sign was related
to any business operation of Peachlum’s.
6. Also in April 1999, Peachlum’s sign was vandalized, but she had it
repaired, encased in glass, and put upon posts embedded in concrete.
She received a notice that same month that the erection of such a
structure required a building permit.
6
In May 1999 Peachlum attempted to appeal the ZO’s
April enforcement action to the ZHB. She mailed her appeal
without the required $350 fee, noting that she could not
afford it, and offering financial documentation if the Board
so desired. The Board flatly told her she could not file
without paying the $350 fee, stating: “Until the fee is
submitted, the City will consider the application incomplete
and will take no action on this appeal.” She filed a second
appeal, in which she claimed in forma pauperis status.
Again, the Board did not consider this appeal because the
fee was not paid. The City stated it will continue to seek
fines on a bi-weekly basis against Peachlum if the sign is
not removed. In November 1999, Peachlum filed this action
for declaratory and injunctive relief and for damages in the
District Court.7
II.
A.
Peachlum argues that she was not given adequate
opportunity to argue the ripeness issue before the District
Court, because the issue was not raised until the day of her
hearing on the merits of her claim. This court has
recognized that considerations of ripeness are sufficiently
important that the court is required to raise the issue sua
sponte even though the parties do not. Felmeister v. Office
of Attorney Ethics, a Div. of the New Jersey Administrative
Office of the Courts, 856 F.2d 529, 535 (3d Cir. 1988).
Moreover, Peachlum was able to argue this point in her
motion for reconsideration to the District Court. Finally,
and significantly, inasmuch as we now endorse Peachlum’s
position on the issue, and hold that her claim is indeed ripe
for disposition, whether she was given an opportunity to
argue the point is moot.
7. The District Court had jurisdiction over Peachlum’s constitutional
claim pursuant to 28 U.S.C. § 1331. This court has appellate jurisdiction
over the Order of Dismissal of the District Court pursuant to 28 U.S.C.
§ 1291. Review of a ripeness determination is plenary. Presbytery of New
Jersey of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d
Cir. 1994).
7
B.
“The existence of a case and controversy is a prerequisite
to all federal actions, including those for declaratory or
injunctive relief.” Presbytery of New Jersey of Orthodox
Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir.
1994). “In some circumstances the ripeness requirement is
drawn from Article III limitations on judicial power and in
others from prudential limitations.” NE Hub Partners, L.P. v.
CNG Transmission Corp., 239 F.3d 333, 341 (3d Cir. 2001).
The function of the ripeness doctrine is to determine
whether a party has brought an action prematurely,
Philadelphia Federation of Teachers, American Federation of
Teachers, Local 3, AFL-CIO v. Ridge, 150 F.3d 319, 323 (3d
Cir. 1998), and counsels abstention until such time as a
dispute is sufficiently concrete to satisfy the constitutional
and prudential requirements of the doctrine. Abbott Labs. v.
Gardner, 387 U.S. 136, 148-49 (1967), overruled on other
grounds, Califano v. Sanders, 430 U.S. 99, 105 (1977).
The following considerations underpin the ripeness
doctrine: are the parties in a sufficiently adversarial posture
to be able to present their positions vigorously; are the facts
of the case sufficiently developed to provide the court with
enough information on which to decide the matter
conclusively; and is a party genuinely aggrieved so as to
avoid expenditure of judicial resources on matters which
have caused harm to no one. See Erwin Chemerinsky,
Federal Jurisdiction § 2.3.1 (1989).
Accordingly, the ripeness doctrine requires that the
challenge grow out of a “real, substantial controversy
between parties” involving a “dispute definite and concrete.”
Babbitt v. United Farm Workers National Union, 442 U.S.
289, 298 (1979) (citation omitted). The question in each
case is whether the facts alleged show that there is a
substantial controversy, between parties having adverse
legal interests, “of sufficient immediacy and reality” to
justify judicial resolution. Maryland Casualty Co. v. Pacific
Coal & Oil Co., 312 U.S. 270, 273 (1941). The Supreme
Court, in Abbott Labs., incorporated the foregoing
considerations into a two-step test for determining ripeness,
which looks at: (1) “the fitness of the issues for judicial
decision,” and (2) “the hardship to the parties of
8
withholding court consideration.” Abbott Labs., 387 U.S. at
149.
Where a dispute arises under circumstances that permit
administrative review, as in the case here, final
administrative determination is favored under the ripeness
doctrine. The basic reason for such determination is to
prevent the courts, “through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements” over administrative problems, and to enable
the agency to proceed without judicial interruption until an
administrative determination has been formalized. Abbott
Labs., 387 U.S. at 148. In many instances, a claim will be
deemed unfit for adjudication until administrative appeals
have been completed, because the administrative tribunal
might work out the intricacies of an area of law in which it
enjoys special expertise. Id.Here, the defendants contend that this case is not ripe
for judicial consideration because the ZHB has not yet had
an opportunity to render a final adjudication of Peachlum’s
claims. They assert that deferral of a decision by the court
does not result in a hardship to Peachlum and there is no
prior restraint, as her sign has been displayed since 1994.
However, the issue raised here involves not the enforcement
of an ordinary municipal regulation but one concerning
both a facial and “as applied” First Amendment challenge to
the City ordinance. Whether the absence of final
adjudication by a municipal agency of the validity of a city
ordinance precludes judicial consideration of First
Amendment challenges to it is one of first impression.
Peachlum asserts that the District Court failed to address
the merits of these claims.
A First Amendment claim, particularly a facial challenge,
is subject to a relaxed ripeness standard.8 Dougherty v.
8. At oral argument, the City suggested that this claim was purely a
matter concerning its prohibition of illuminated signs and had nothing
to do with the speech content of the sign. Clearly, however, under the
Supreme Court’s opinion in City of Ladue v. Gilleo, 512 U.S. 43 (1994),
content neutral limitations on yard signs are subject to a stringent First
Amendment analysis for fear that broad limitations on yard signs would
stifle an important channel of public speech. Second, the City ignores
9
Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d
83, 90 (2d Cir. 2002). The courts have repeatedly shown
solicitude for First Amendment claims because of concern
that, even in the absence of a fully concrete dispute,
unconstitutional statutes or ordinances tend to chill
protected expression among those who forbear speaking
because of the law’s very existence. This concern is
particularly acute with regard to facial challenges to a
statute or ordinance. Broadrick v. Oklahoma, 413 U.S. 601,
612 (1973).
Peachlum suggests that our opinion in Step-Saver Data
Systems, Inc. v. Wyse Technology, 912 F.2d 643 (3d Cir.
1990), supports her claim to ripeness. Therein, this court,
interpreting Abbott Labs., set forth a three-part test for the
appropriateness of declaratory relief in a situation where
ripeness is contested. The Step-Saver test asks three
questions: 1) whether the parties’ interests are sufficiently
adverse; 2) whether the court can issue a conclusive ruling
in light of potentially evolving factual developments; and 3)
whether the decision will render practical help to the
parties. Step-Saver, 912 F.2d at 647. “The Step-Saver rubric
is a distillation of the factors most relevant to the Abbott
Labs considerations.’ ” NE Hub Partners, 239 F.3d at 342(citation omitted).
As Peachlum acknowledges, however, the Step-Saver
analysis is tailored to address pre-enforcement actions. See
Presbytery, 40 F.3d at 1463 (“We have adopted a three part
test in determining whether we will engage in pre-
enforcement review in the context of a declaratory action.”);
cf. Lauderbaugh v. Hopewell Township, 319 F.3d 568, 575
(3d Cir. 2003) (declining to apply Step-Saver factors in case
where enforcement was pending). The courts have allowed
somewhat liberally constitutional challenges under
circumstances where the government has not initiated
the exemption under § 1309.04 of certain forms of speech, based on
content, from the ordinance’s other limitations, including the
illumination ban. Thus, an action brought under any provision of the
sign ordinance implicates the content based exemption provision. See
R.A.V. v. St. Paul, 505 U.S. 377, 420-22 (1992).
10
enforcement proceedings. New Mexicans for Bill Richardson
v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995) (citation
omitted) (facial infirmity in connection with “[r]easonable
predictability of enforcement or threats of enforcement” may
be enough to ripen a claim.).
Our stance toward pre-enforcement challenges stems
from a concern that a person will merely comply with an
illegitimate statute rather than be subjected to prosecution.
See Presbytery, 40 F.3d at 1467 (quoting Steffel v.
Thompson, 415 U.S. 452, 458 (1974)) (holding that the case
was ripe despite the state’s failure to initiate a prosecution;
it is not necessary that petitioner first expose himself to
prosecution to be entitled to challenge a statute that he
claims deters the exercise of his constitutional rights). Or,
the government may choose never to put the law to the test
by initiating a prosecution, while the presence of the
statute on the books nonetheless chills constitutionally
protected conduct. See 13A Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure
§ 3532.5 (2d ed. 1984) (in pre-enforcement context, courts
are primarily concerned with the chilling effect occasioned
by the mere existence of the statute, even absent formal
prosecution thereunder).
Therefore, in cases involving fundamental rights, even the
remotest threat of prosecution, such as the absence of a
promise not to prosecute, has supported a holding of
ripeness where the issues in the case were “predominantly
legal” and did not require additional factual development.
See Presbytery, 40 F.3d at 1464.9
The concerns we face in circumstances where
enforcement actions are ongoing, but where administrative
finality is not yet achieved, are different. The Step-Saver
analysis is primarily concerned with whether the parties are
in a sufficiently adversarial posture and whether the
9. Similarly, with respect to prior restraint challenges “our cases have
long held that when a licensing statute allegedly vests unbridled
discretion in a government official over whether to permit or deny
expressive activity, one who is subject to the law may challenge it facially
without the necessity of first applying for, and being denied, a license.”
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755-56 (1988).
11
dispute has undergone sufficient factual development to
allow judicial resolution. In most post-enforcement actions
those criteria will surely have been met. The question here
is whether the courts should intervene as a prudential
matter in a dispute that is in the process of being pursued
administratively. See Armstrong World Industries, Inc. by
Wolfson v. Adams, 961 F.2d 405, 412 (3d Cir. 1992) (“the
[Step-Saver] factors are not exhaustive of the principles
courts have considered in evaluating ripeness challenges,”
and we must independently consider the judicial preference
for administrative finality).
As we discuss in Part II.D., a facial First Amendment
challenge is not normally subject to administrative finality
analysis under any circumstances. Depending on
circumstances, however, there may be some value in
permitting an administrative body to resolve an ongoing
dispute in “as applied” challenges once enforcement
proceedings have begun. In post-enforcement
circumstances, there may be little need to hasten
administrative resolution because the claim is already in
the process of being resolved. However, we note that this
court has never previously imposed an administrative
finality requirement on claims involving free speech rights.
We recognize that free speech may be suppressed and a
concrete injury may occur merely as a result of the
initiation of enforcement proceedings. We do not now hold
that administrative finality applies in such cases. However,
even if the administrative finality doctrine is applicable to
Peachlum’s First Amendment claims, her claims are, for the
reasons hereafter set forth, ripe.
In determining ripeness in a post-enforcement context,
we must take into account prudential considerations such
as “the degree to which postponing federal judicial review
would have ‘the advantage of permitting state courts
further opportunity to construe [the challenged provisions],
and perhaps in the process materially alter the question to
be decided.’ ” Armstrong World Industries, Inc. by Wolfson v.
Adams, 961 F.2d 405, 412 (3d Cir. 1992) (quoting Renne v.
Geary, 501 U.S. 312, 323 (1991)). “Whether a question is fit
for judicial review depends upon factors such as whether
the agency action is final . . . and whether further
12
administrative action is needed to clarify the agency’s
position, for example, when the challenged prescription is
discretionary so that it is unclear if, when or how the
agency will employ it.” Felmeister, 856 F.2d at 535-36.
However, ripeness is not to be confused with exhaustion.
Williamson Planning Comm’n v. Hamilton Bank, 473 U.S.
172, 192 (1985) (“[T]he question whether administrative
remedies must be exhausted is conceptually distinct . . .
from the question whether an administrative action must
be final before it is judicially reviewable.”); United States ex
rel. Ricketts v. Lightcap, 567 F.2d 1226, 1232 (3d Cir. 1977)
(“The doctrines of ripeness for adjudication and of
exhaustion of administrative remedies are distinct and not
interchangeable.”). Although courts prefer administrative
finality, Lauderbaugh, 319 F.3d at 575, the issue is
whether a provisional administrative decision “has been
formalized and its effects felt in a concrete way by the
challenging parties.” Abbott Labs., 387 U.S. at 149. “The
finality rule is designed to enforce this requirement, not to
require the exhaustion of administrative remedies.”
Lauderbaugh, 319 F.3d at 575. Thus, where a party suffers
a concrete injury prior to final administrative disposition,
such as fines or unreasonable appeal fees, the claim may
be considered sufficiently ripe. We reiterate that an “as
applied” free speech claim has never been deemed subject
to administrative finality doctrine by our court or any other
court of appeals, and we do not now so hold. But cf. Digital
Properties, Inc. v. City of Plantation, 121 F.3d 586 (11th Cir.
1997).
C.
Even if the administrative finality doctrine is applicable to
a post-enforcement First Amendment claim, Peachlum’s
claim is clearly ripe. York’s enforcement proceedings have
been spread over a period of approximately ten years and
the zoning ordinance has imposed immediate hardship
upon her. The interim decision of the zoning authorities
has been formalized and its effects felt in a concrete way.
Peachlum has had two civil judgments entered against her
levying over $1,000 in fines and costs. There is no question
that any infringement of her First Amendment speech
13
rights has already occurred, and that the Federal Court has
before it a sufficiently adverse proceeding where factual
developments have fully evolved and a decision at this point
could provide meaningful assistance to all the parties.
Even if Peachlum were not subject to interim fines and
other hardship, this claim would still be ripe because the
ZHB appeal fee presents a steep barrier to an
administrative appeal. Therefore, although this action
comes before us in res media, because the City over a
considerable period of time has initiated enforcement
actions against Peachlum and yet no appeal has been
determined, the matter is ripe. Here, Peachlum was unable
to pay the substantial appeal fee, and she now faces
mounting fines as a result. Her failure to appeal this matter
to the ZHB is because of her uncontroverted bleak financial
situation. Although we need not decide whether Peachlum’s
due process was violated by the denial of a fee waiver,10 the
record indicates that Peachlum’s default of her right to
appeal was entirely innocent. She twice expressed her
desire to have the appeal fee waived, and offered to produce
supporting financial documentation at the City’s request. It
never so requested, nor did it apprise her that it considered
the burden of proving financial hardship to be on her. We
venture no opinion as to whether a willfully defaulted
administrative appeal might affect the ripeness of the claim,
but Peachlum’s default is innocent.
A municipality cannot effectively foreclose the right to
10. The general rule appears to be that, in civil cases, denying leave to
appeal a lower-level decision in forma pauperis “does not [per se] offend
the requirements of due process” Parsell v. United States, 218 F.2d 232,
235 (5th Cir. 1955). However, where a party “has . . . advanced . . .
reason[s] why the denial of a fee waiver inhibits” a constitutional right,
the agency appealed to must consider this factor and exercise sound
discretion in determining whether to waive the fee. Ely v. U.S. Postal
Service, 753 F.2d 163, 165 (D.C. Cir. 1985). Thus, to the extent this case
involved a constitutional right, that Peachlum articulated to the ZHB, it
should have set forth reasons for denying her claim to have the appeal
fee waived. Here, despite Peachlum’s willingness to present financial
information, the ZHB never requested it, or offered any other data
specific to Peachlum’s claim why she should have been denied in forma
pauperis status.
14
appeal while simultaneously asserting that the claim is
unripe. See Lauderbaugh, 319 F.3d at 575 (“[Defendant]
cannot treat its zoning decision as final enough to force a
significant hardship upon [plaintiff] by forcing her to pay
[penalties] but not final enough to be ripe for
adjudication.”). For all intents and purposes, because final
appeal is now foreclosed, the City “has arrived at a
definitive position on the issue that inflicts an actual,
concrete injury;” the claim is therefore ripe. Williamson
County Regional Planning Com’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 193 (1985).
It is also clear that Peachlum’s claim should be deemed
ripe based upon the Abbott Labs. hardship test. Here,
Peachlum’s participation in an appeal to the ZHB is
conditioned on her tender of the $350 fee, a fee she offered
to prove she could not afford. To the extent that Peachlum’s
appeal has not been waived, the hardship here remains
substantial. The City has given no indication that it might
be willing to waive the fee.
D.
Even if there were no fees or other impediments to
Peachlum’s appeal of this matter, a facial First Amendment
challenge may be deemed ripe even during the pendency of
an administrative proceeding. Ripeness standards are most
relaxed when the First Amendment claim is a facial
overbreadth challenge. Facial claims vindicate the rights of
many would-be speakers. To allow the vindication of such
broad entitlements, we relax our ripeness requirements for
such claims. See Kines v. Day, 754 F.2d 28, 30-31 (3d Cir.
1985).
In the case of overbreadth challenges, standing arises
“not because [the plaintiff ’s] own rights of free expression
are violated, but because of a judicial prediction or
assumption that the [challenged statute’s] very existence
may cause others not before the court to refrain from
constitutionally protected speech or expression.” Broadrick,
413 U.S. at 612. Therefore, an individual against whom no
enforcement action has been taken can still challenge a
regulation “because [that regulation] also threatens others
15
not before the court — those who desire to engage in legally
protected expression but who may refrain from doing so
rather than risk prosecution or undertake to have the law
declared partially invalid.” Waterman v. Farmer, 183 F.3d
208, 212 (3d Cir. 1999) (quoting Brockett v. Spokane
Arcades, Inc., 472 U.S. 491, 503 (1985)).
This concern with the rights of those not before the court
holds equal force in both pre-enforcement cases and those
in which prosecution is pending. See Canatella v. State of
California, 304 F.3d 843, 853 (9th Cir. 2002). Although a
final administrative decision on Peachlum’s claim might
definitively resolve its applicability to her sign, the rights of
others may go untested. Even if Peachlum’s case had been
successfully appealed and the ordinance deemed
inapplicable to her, one can conceive of manifold other
situations where York residents might be unsure of the
status of various other forms of signage. Those residents
who are more diffident about risking penalties under the
ordinance might have their free speech rights vindicated
through Peachlum’s suit.
The ordinance also appears to be a prior restraint, which
further counsels in favor of intervention, even absent final
administrative resolution.
[A] law subjecting the exercise of First Amendment
freedoms to the prior restraint of a license must
contain narrow, objective, and definite standards to
guide the licensing authority. The reasoning is simple:
If the permit scheme involves appraisal of facts, the
exercise of judgment, and the formation of an opinion,
by the licensing authority, the danger of censorship
and of abridgment of our precious First Amendment
freedoms is too great to be permitted.
Forsyth County v. Nationalist Movement, 505 U.S. 123, 131
(1992) (internal citations and quotations omitted). The City
of York contends that Peachlum’s ability to put up her sign,
notwithstanding the permit provision, demonstrates that
there was no prior restraint. However this reasoning is
illusory. A failure to enforce the ordinance requirements is
not tantamount to permission. The caselaw suggests that
the mere existence of such a law raises constitutional
16
questions. See Thornhill v. Alabama, 310 U.S. 88, 97
(1940). The existence of the permit system chills speech,
and the failure to enjoin Peachlum physically from
maintaining her sign is not dispositive here. The permit
procedure in the ordinance enjoins speech, and thus a
ripeness holding is appropriate here.
E.
The District Court relied on Taylor Investment v. Upper
Darby Township, 983 F.2d 1285, 1291 (3d Cir. 1993), for
the proposition that “with respect to zoning disputes, a
property owner suffers no mature constitutional injury until
the zoning authority defines the application of the zoning
ordinance and defines the harm to the owner.” The District
Court therefore concluded that courts should be
exceedingly reluctant to intervene in a zoning dispute
before the administrative tribunal has had its final say.
Taylor, which concerned a zoning dispute over land use,
held that administrative finality was required “even where
the attack is premised on substantive due process,
procedural due process, and equal protection.” Id. at 1292.
This court held that deferral to the administrative tribunal
on these constitutional questions served great usefulness in
resolving these claims by establishing the zoning board’s
rationale for its action. Here, though, Peachlum was
effectively barred from appealing her claim to the ZHB.
Moreover, extending Taylor to facial free speech matters is
contrary to our precedent, which encourages the prompt
constitutional adjudication of laws which may chill the free
speech of many persons.
The District Court and the City cited our Felmeister
opinion for the proposition that in some free speech
contexts, final administrative determinations are favored.
Notably, in that case the state had “provided an expeditious
means of testing the reach of the rule through an advisory
opinion process.” Felmeister, 856 F.2d at 531. The
plaintiffs, however, failed to avail themselves of a relatively
simple way of determining whether their speech runs afoul
of the rule. Id. In this case, not only is there no available
advisory opinion procedure, but the City has imposed a
substantial barrier to Peachlum’s invocation of its appeal
17
mechanism. Moreover, Felmeister was a pre-enforcement
action in which plaintiffs were not fined or threatened with
civil actions as was Peachlum.
F.
Pursuant to our policy of allowing the District Court to
first address the merits of a claim, now that we have
decided the claims to be ripe, we decline to pass on the
issues concerning whether the ordinance is constitutionally
sound. “It is the general rule, of course, that a federal
appellate court does not consider an issue not passed upon
below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976).
Peachlum correctly notes that there may be some
circumstances under which the appellate court may be
justified in deciding an issue not passed upon in the
District Court. We believe, however, that in this instance it
would be appropriate to allow the District Court to analyze
the application of the facts pertaining to a complex
ordinance and to resolve the remaining substantive issues
in the first instance.11
III.
Accordingly, we hold Peachlum’s claims are ripe for
disposition. The Order of Dismissal will be vacated and the
case remanded for further proceedings consistent with this
opinion. Given the delays already endured by the parties, it
is expected that the District Court will proceed with
appropriate dispatch. Costs taxed against the appellees.
11. Insofar as Peachlum’s free speech, Free Exercise, and Equal
Protection claims are all interrelated, the District Court should address
all of these outstanding substantive claims together on remand, in the
interests of judicial economy. As for her due process claim, a
determination that the ordinance was unconstitutionally applied to
Peachlum would negate the fines levied against her and would
presumably render her due process claim moot. Conversely, an
upholding of the ordinance’s application would implicitly approve of the
City’s fine.
18
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit