                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        MAR 29 2001
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 ELIZABETH H. COOK, FRANK
 BOWDEN, and JAMES COOPER,

               Plaintiffs - Appellants,
                                                        No. 00-2180
          v.                                    (D. Ct. No. CIV-99-322-BB)
                                                        (D. N. Mex.)
 JIM BACA, in his capacity as Mayor
 of the City of Albuquerque and CITY
 OF ALBUQUERQUE,

               Defendants - Appellees.


                            ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, LUCERO , Circuit Judge, and       BROWN , ^ District
Judge.


      Appellants appeal the district court’s grant of summary judgment against

them on their First Amendment claims. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.

                                          I.

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

      Honorable Wesley E. Brown, Senior District Judge for the District of
      ^

Kansas, sitting by designation.
      The appellants are members of a government watchdog group called

Concerned Citizens of Albuquerque. The appellants opposed a transportation tax

proposal which came before the citizens of Albuquerque for approval on March

31, 1999. Appellee Jim Baca, the mayor of Albuquerque, was a supporter of the

proposed tax.

      Albuquerque provides its citizens with water service and mails a monthly

billing statement to those who utilize the city’s water service. Every water bill

provides a space for the mayor of Albuquerque to address a short informational

message to the city’s citizens. On the March, 1999 water bill, Mayor Baca used

the space to advocate the passage of the transportation tax.

      On March 25, 1999, the appellants filed suit in federal district court

alleging that Mayor Baca and the city of Albuquerque had violated their rights

under the First Amendment of the Constitution. On July 27, 1999, the appellants

requested access to the water bill in order to distribute a political message of their

own. The city denied the appellants access to the bill. Subsequently, the

appellants filed a supplemental complaint alleging further violations of their First

Amendment rights. Cross motions for summary judgment were filed and, on

April 25, 2000, the district court granted the appellees’ motion and dismissed the

case. This appeal followed.

                                          II.


                                         -2-
       We review a district court’s grant of summary judgment de novo applying

the same legal standard applicable in the district court.   St. Charles Inv. Co. v.

C.I.R. , 232 F.3d 773, 775 (10th Cir. 2000).

       The appellants argue that the mayor’s message on the water bill and the

city’s refusal to place the appellants’ own message on the bill amounted to: (1) an

unconstitutional denial of free speech; (2) unconstitutional viewpoint

discrimination; (3) unconstitutional prior restraint; and (4) an unconstitutional use

of public funds. The district court held that the water bill was a non-public

forum, and thus the government’s speech restraint was subject only to a

reasonableness analysis. The court further found that restricting the water bill

message exclusively to the mayor of the city was reasonable. Ancillary to this,

the court found that the restriction was not based on viewpoint discrimination, but

rather on a policy restricting access to the particular non-public forum to the

mayor alone. The court went on to rule that even if the restriction operated as a

prior restraint, the prior restraint was constitutional because the forum was non-

public and the restraint was reasonable. Finally, the district court found that

government funds are inevitably used to promote government objectives that are

contrary to certain taxpayers’ beliefs and convictions. Where government funds

are used for minimal advocacy of a government initiative, there is no ominous

threat to the First Amendment and thus no violation.


                                             -3-
      For substantially the same reasons given by the district court, we agree that

the appellants’ First Amendment rights were not violated by the actions of the

appellees. Accordingly, the district court’s grant of appellees’ motion for

summary judgment is AFFIRMED.

                                              ENTERED PER CURIAM




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