City of Lakewood v. Colfax Unlimited Association

No. 28478 (634 P.2d 52) (Colo. September 21, 1981)

ELR Digest

The court invalidates a Lakewood, Colorado billboard ordinance on First Amendment and equal protection grounds. Initially, it rules that appellees, owners and users of commercial signs, lack standing to challenge the Lakewood Sign Code's definition of "sign," in the context of its time, place, manner, and permit regulations, as restricting freedom of expression for noncommercial messages. In First Amendment cases, the rules of standing, though broadened to allow parties to whom the laws could be applied to assert their facial unconstitutionality, grant standing to assert third-party rights only where the overbreadth of the statute is substantial. The court finds that the Code's definition of "sign" is not substantially overbroad since it does not regulate expression. It also holds that appellees lack standing to challenge the definition as unconstitutionally vague, since it is not vague in its application to appellees' conduct. Further, appellees lack standing to assert that the definition is an unconstitutional delegation of legislative power to administrative authorities, in the absence of actual or threatened injury from arbitrary administrative interpretations. Next, however, the court holds that the Code's regulation of the content of "political" signs is unconstitutionally overbroad because it may be construed to prohibit all ideological signs pertaining to matters other than those under consideration at an upcoming election. In addition, the Code's regulation of the content of commercial signs is also invalid, since prohibiting such messages as price information while permitting other commercial messages was not shown to direclty advance safety and aesthetic purposes. Next, the court invalidates the Code's prohibition of political advertising on bus benches where commercial messages are permitted.Finally, the court holds that certain of the Code's provisions are in violation of the Equal Protection Clause of the Fourteenth Amendment. It notes that ideological speech may be exempted from regulations applicable to commercial signs, because of the overriding social interest in the freest possible dissemination of ideological messages. However, provisions favoring some types of commercial speech over others are unconstitutional since appellees failed to justify individual exclusions. Similarly, in the absence of a plain and cogent justification, the Code's exemption of several types of ideological expression from the place and manner regulations required for other ideological signs is also unconstitutional. Although the Code contains a severability clause, the court concludes that its defects are so pervasive that it must be invalidated in its entirety.

The full text of the opinion is available from ELR (20 pp. $3.00, ELR Order No. C-1275).

Counsel for Appellants
Glen B. Maynard
Brown, Maynard & Miller
14618 W. 6th Ave., Golden CO 80401
(303) 278-1926

Robert E. Warren
Gorsuch, Kirgis, Campbell, Walker & Grover
1200 American Nat'l Bank Bldg., Denver CO 80202
(303) 534-1200

Counsel for Appellees
Thomas L. Roberts
Pryor, Carney & Johnson
7503 Marin Dr., Englewood CO 80111
(303) 771-6200

John E. Walberg
801 E. 17th Ave., Denver CO 80218
(303) 861-8240

Dubofsky, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]