Friederich Koenig v. Town of Yucca Valley

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRIEDERICH KOENIG,
Plaintiff-Appellant,
v.
TOWN OF YUCCA VALLEY and
SHANE STUECKLE, in his official
capacity as acting City Manager and
Deputy Manager of the Town of Yucca
Valley,
Defendants-Appellees.
No. 14-56608
D.C. No. 5:14-cv-01310-R-SH
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted August 2, 2016
Pasadena, California
Before: REINHARDT, KOZINSKI, and WARDLAW, Circuit Judges.
Friederich Koenig (“Koenig”) appeals the district court’s grant of a motion
to dismiss his claim that the Town of Yucca Valley (“Town”) violated his First
Amendment rights.
FILED
AUG 11 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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1. First, we find that Koenig has not adequately alleged that the Town has, in
fact, restricted what he may say. Nothing in the complaint or record suggests that
Koenig was prevented from presenting his materials directly to the Planning
Commission, and indeed, the complaint and record reflect that Koenig presented
his filing in full to the Town Council, the body charged with the final decision on
permit applications. Moreover, Koenig not only submitted his documents to the
Town Council, but the judicially noticed meeting minutes in the record show that
he in fact spoke in person at both the Commission and the Council hearings. Given
these facts, we agree with the district court’s conclusion that the Town did not
prevent or restrain Koenig’s free speech.
2. We additionally reject Koenig’s contention that by including public
comments in the staff report, the Town transformed the document into a limited
public forum. Neither our First Amendment precedent nor the text of California’s
Brown Act supports Koenig’s claims.
When the government incorporates multiple speakers’ messages into a larger
compilation, it does not necessarily create a public forum. See, e.g., Pleasant
Grove City v. Summum, 555 U.S. 460, 478-81 (2009) (holding that by opening a
park to certain privately donated monuments, the government did not render the
space a public forum). The “government does not create a public forum by inaction
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or by permitting limited discourse, but only by intentionally opening a
nontraditional public forum for public discourse.” Hopper v. City of Pasco, 241
F.3d 1067, 1075 (9th Cir. 2001) (quoting Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc., 473 U.S. 788, 802 (1985)). Here, the purpose of the staff report was not
to express the full range of public opinion or to provide a space for public debate,
but instead to convey a specific recommendation from the Town staff to the
Planning Commission. As we have previously held, “[s]imply because the
government opens its mouth to speak does not give every outside individual or
group a First Amendment right to play ventriloquist.” Downs v. L.A. Unified Sch.
Dist., 228 F.3d 1003, 1013 (9th Cir. 2000). The decision by the Town staff to
support its analysis by attaching certain public submissions in full while failing to
include the entirety of others presents no First Amendment quandary.
Koenig’s contention that the Brown Act gives substance to his First
Amendment claims similarly falls short. The California statute in relevant part
provides that: “[e]very agenda for regular meetings shall provide an opportunity for
members of the public to directly address the legislative body on any item of
interest to the public, before or during the legislative body’s consideration of the
item[.]” Cal. Gov’t Code § 54954.3(a). Here, Koenig was clearly provided the
opportunity to address the Planning Commission and the Town Council during their
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respective meetings. The Brown Act does not guarantee Koenig any further
communication with the Commission, and certainly does not require that the Town
include his submissions in the pre-hearing staff report.
3. Finally, to the extent that the staff report conveys the Town’s internal
recommendation to its Planning Commission, it is government speech and the
“First Amendment strictures that attend the various types of government-
established forums do not apply.” Walker v. Tex. Div., Sons of Confederate
Veterans, 135 S. Ct. 2239, 2250 (2015). We have noted that when the government
speaks, “the First Amendment does not preclude the government from exercising
editorial control over its own medium of expression.” Downs, 228 F.3d at 1013
(citation and internal quotation marks omitted). The report was prepared by town
staff members, whose names appeared on the “from” line of the document, and it
conveyed the staff’s own analysis and viewpoint to the Commission. An onlooker
would reasonably appreciate the identity of the speakers to be the government, and
would understand that the government “has ‘effectively controlled’ the messages . .
. by exercising ‘final approval authority’ over [them].” Walker, 135 S. Ct. at 2249
(quoting Summum, 555 U.S. at 473). Thus, we agree with the district court that it
was “clearly within the Town staff’s prerogative to determine what went in to this
report.”
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The decision of the district court is therefore AFFIRMED.
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