                                                                                              T= ILED
                                                                                      COURT OF APPEALS
                            OF THE STATE OF WAS
    IN THE COURT OF APPEALS O                                                                         G    ON
                                                                                     Z015 APP - 7    AM 9: 22
                                              DIVISION II
                                                                                     STATE OF WASHINOTON
 CITY OF LAKEWOOD,                                                                No05034 -8 -IL

                                                                                              DEPU
                 Respondent /Cross -Petitioner,


          v.



 ROBERT W. WILLIS,                                                        UNPUBLISHED OPINION


                 Petitioner /Cross -Respondent.


         MELNICK, J. —    On discretionary review, Robert Willis challenges his municipal court jury

trial conviction of begging in restrictive areas. Willis argues that the City of Lakewood' s ( City' s)

anti -begging ordinance is unconstitutional because it infringes on his freedom of speech, it is

unconstitutionally    vague,   and   it discriminates    against   the   poor.    We reject Willis' s freedom of


speech and vagueness arguments and hold that the ordinance is a constitutional restriction on

conduct in a non -public forum, and affirm the superior court. We also dismiss Willis' s claim that

the ordinance violates equal protection by discriminating against the poor because review was

improvidently   granted on     this issue.    We do not reach the City' s cross -review claim that the

superior court erred    by declining    to hold that the    ordinance     is   content -neutral.   Accordingly, we

affirm the superior court.


                               FACTS AND PROCEDURAL HISTORY


         A person called 911 to report an individual banging on his or her car while begging for

money on the northbound I -5 exit at Gravelly Lake Drive. A Lakewood police officer responded

to the   scene and   found Willis standing    on   the   shoulder of     the   northbound   I -5 ramp,   facing   south
45034 -8 -II




toward oncoming traffic.1 Willis had a cardboard sign stating he was disabled and needed help.

Willis approached a car by walking out from the shoulder and into the lane of travel.

          The     City   charged    Willis   with   begging   in    restrictive areas under   LMC 09A.4. 020A.     LMC


09A.4. 020A        provides: "    Begging shall be deemed a violation of this section of the municipal code

under    the   following    conditions: (    1) at on and off ramps leading to and from state intersections from

any   City     roadway     or overpass."      Begging is defined as " asking for money or goods as a charity,

whether      by   words,   bodily   gestures, signs or other means."            LMC 09A. 4. 020( E). A municipal court


jury found Willis guilty of begging in restrictive areas.

          Willis appealed to the Pierce County Superior Court and, for the first time, raised

constitutional challenges to the ordinance.2 The superior court affirmed his conviction and held

that LMC 09A.4. 020A is a reasonable time, place, and manner regulation that does not violate the

First Amendment, the Due Process Clause,                      or    the Equal   Protection   Clause.   The superior court


reasoned that the ordinance was " narrowly tailored to serve a significant government interest, and

leave    open ample alternative channels of communication."                      Clerk' s Papers ( CP) at 108. The City

argued that the restrictions were content -neutral; however, the superior court did not rule on the

issue.


          Willis                                     this           for discretionary   review, which we granted.    We
                    and    the   City   petitioned          court




affirm the superior court.




1The record is somewhat confusing, as it appears to indicate that the citing officer was coming
southbound from the north, meaning that if Willis had been on the northbound ramp, the officer
would     have had to       cross   the median to       reach      Willis.   Regardless, the uncontroverted testimony
established       that Willis    was at an " on [ or] off      ramp[]    leading to [ or] from state intersections from
any   City     roadway     or overpass."      LMC 09A.4. 020A. This fact suffices for the foregoing analysis.

2 Because Willis did not raise his constitutional issues in the municipal court, the factual record is
not well developed.


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                                                       ANALYSIS


I.        STANDARD OF REVIEW


          The constitutionality of a statute or ordinance is a matter of law we review de novo. Kitsap

County v.    Mattress Outlet, 153 Wn.2d 506, 509, 104 P. 2d 1280 ( 2005).                     In general, a duly enacted

ordinance is presumed constitutional, and the challenger must demonstrate its unconstitutionality

beyond     a reasonable      doubt. Mattress Outlet, 153 Wn.2d                 at   509.   But in the First Amendment


context,   the burden       shifts   to the State to   justify       a restriction on speech.    Greater New Orleans


BroadcastingAss' n, Inc. v. United States, 527 U.S. 173, 183, 119 S. Ct. 1923, 144 L. Ed. 2d 161

 1999).     This shift also occurs where the challenged law restricts the time, place, or manner of

speech.     Collier   v.   City of Tacoma,     121 Wn.2d 737, 759, 854 P. 2d 1046 ( 1993).               As we explain


below, LMC 09A.4. 020A restricts the place of speech. Therefore, Lakewood bears the burden to

meet each element of the time, place, and manner test.


II.       FIRST AMENDMENT


          Willis argues that LMC 09A.4. 020A violates his right to freedom of speech because it is a

content -  based   prohibition on speech and           less   restrictive alternatives were available.       Even if the


ordinance were content -neutral, Willis argues that the City failed to demonstrate that the ordinance

supported a     compelling       state   interest   or was    reasonably     related   to supporting that interest.   The.


City argues that LMC 09A.4. 020A is a permissible regulation of speech in a non -public forum.

Alternatively, the City argues that LMC 09A.4. 020A is permissible as a content -neutral restriction

 on the time, place, or manner of speech. We agree with the City and hold that a freeway onramp

 is   a non -public   forum.     We hold that LMC 09A.4. 020A is a reasonable and viewpoint neutral


 regulation, and we affirm the superior court without reaching the City' s alternative argument.




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45034 -8 - II



         A.             Forum Analysis


             Forum analysis requires a two -step inquiry. First, we must determine the type of forum

affected by the restriction here: Is it a public forum, a limited public forum, or a nonpublic forum?

If the forum is determined to be nonpublic, the restriction is constitutional if it is reasonable in

light   of   the   purposes        of   the forum      and      is             neutral."
                                                                     viewpoint -                    Herbert v. Wash. State Pub.


Disclosure Comm' n, 136 Wn. App. 249, 263, 148 P. 3d 1102 ( 2006).

         The First Amendment to the federal constitution protects the right to freedom of speech.3

But the government is not obligated to permit all forms of speech on property that it owns and

                                                                                                                        Therefore, "[ i] n
controls.     Sanders       v.   City   of Seattle, 160 Wn.2d 198, 208, 156 P. 3d 874 ( 2007).


reviewing a free speech challenge to a government regulation, the level of judicial scrutiny is
determined                                into                              type        property falls."      Sanders, 160 Wn.2d at
                   by   the category             which a specific                  of




208.


         The       courts    distinguish between three                 categories       of   forums.    First, there are traditional


         forums                    have                          been held in trust for the            use of   the   public and ...     for
public                  which "'          immemorially

purposes        of      assembly,       communicating            thoughts       between          citizens,    and discussing public

questions. '         Perry Educ. Ass 'n v. Perry Local Educators' Ass 'n, 460 U. S. 37, 45, 103 S. Ct. 948,
74 L. Ed. 2d 794 ( 1983) (              quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S. Ct.

954, 83 L. Ed. 1423 ( 1939)). To be                a   traditional     public      forum,    a   property    must   have "`   as a principal




purpose ...          the free    exchange of       ideas. '          Sanders, 160 Wn.2d at 209 ( quoting Intl Soc' y for




3"
     Congress shall make no law respecting an establishment of religion, or prohibiting the free
 exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
                                          to              the    government         for   a redress of grievances."           U. S. CONST.
peaceably to         assemble, and             petition

 amend. I.



                                                                        4
45034 -8 -II



Krisha Consciousness, Inc. v. Lee, 505 U. S. 672, 679, 112 S. Ct. 2701, 120 L. Ed. 2d 541 ( 1992)

 alteration    in   original) ( internal         quotation marks omitted)).


         Second,        the     government          may     create   a    public      forum "   by intentionally opening a

nontraditional       forum for          public   discourse."    Cornelius       v.   NAACP Legal Defense &         Educ. Fund,


Inc., 473 U. S. 788, 802, 105 S. Ct. 3439, 87 L. Ed. 2d 567 ( 1985).                            The courts will not " infer that


the government intended to create a public forum when the nature of the property is inconsistent

with expressive        activity."        Cornelius, 473 U. S. at 803.


         Third, "      government property may be considered a nonpublic forum when it is not a

traditional public forum and has not been designated by government as a forum for public

communication."              Sanders, 160 Wn.2d at 210.


         Here, Willis          was convicted of        begging       on   a freeway onramp. To determine whether the


onramp is a public forum, we consider " whether a ` principal purpose' of the property is the free

exchange of ideas, whether the property shares the characteristics of a traditional public forum,

and   the historical use           of   the property."      Sanders, 160 Wn.2d           at   211.    Applying this analysis we

hold that a freeway onramp is a non -public forum.

         Freeway onramps are not, and have never been, principally intended as a forum for the
                    ideas.              are components of the        Interstate System        and are meant   to "' facilitate safe
exchange of                   They

and efficient       travel    by   motorists       along the System'       s   highways. '      Jacobsen v. Bonine, 123 F. 3d


1272, 1274 ( 9th Cir. 1997) (              quoting Sentinel Commc' ns Co. v. Watts, 936 F.2d 1189, 1203 ( 1 lth

Cir. 1991)).        Nothing in the record indicates that the government intended to open the freeways to

public   discourse.          Allowing expressive activity in the freeway and its onramps would disrupt the

principal purpose of the freeway which is to facilitate travel. In fact, Willis' s activities disrupted
travelers   because he         entered      the lane   of   travel and approached cars.              Freeways and their onramps




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45034 -8 -II




are   not    traditional       public     forums,       nor have they been designated as forums for public

communication. Therefore, we hold that freeway onramps are nonpublic forums.

           B.          Reasonable Restriction & Viewpoint Neutral


            Speech in        nonpublic    forums may be       restricted    if ` ...the distinctions drawn are reasonable


in light    of   the   purpose served          by   the forum and are      viewpoint neutral.'         City of Seattle v. Huff,

111 Wn.2d 923, 926, 767 P. 2d 572 ( 1989) (                  quoting City ofSeattle v. Eze, 111 Wn.2d 22, 32, 759
                                                                                                        4"
P. 2d 366 ( 1988)) (         alteration   in   original) ( internal quotation marks omitted).                 Viewpoint- neutral


regulations are those not in place ` merely because public officials oppose the speaker' s view. '

Herbert, 136 Wn. App. at 264 ( quoting Perry, 460 U.S. at 46).

            It is reasonable to prohibit begging activity in a forum that is primarily meant for the

passage of automobiles.              When persons confront motorists to ask for money, they interrupt the

flow of traffic and disrupt the efficient functioning of the freeway system. Begging on the freeway

also creates significant safety risks, particularly where, like Willis, a person enters into cars' lanes

of travel.


            LMC 09A. 4. 020A is            also viewpoint neutral.          See Herbert, 136 Wn.             App.   at   264.    Under


the ordinance, no one may beg on a freeway onramp, regardless of why they are begging. In other

words, even though the ordinance restricts the speaking of certain content, the ordinance does not

concern itself with the speaker' s viewpoint. The ordinance evenhandedly regulates conduct, not

to suppress any particular viewpoint, but to reduce a potentially severe threat to public safety. We




4 Because Willis raised his constitutional challenges for the first time on appeal, we are mindful
                                          from making                        factual            to defend its       positions.     For
that the     City      was precluded                         a complete                record


example, it never litigated the compelling interest the City had in enacting the ordinance.
Nonetheless,           we   feel there   are sufficient    facts   on   the forum issue for     us   to decide the       case.
45034 -8 -II




hold that LMC 09A.4. 020A is a permissible regulation of a nonpublic forum, and we affirm the


superior court without reaching the City' s arguments on cross -review.

III.      VAGUENESS.


          Willis argues that LMC 09A.4. 020A is unconstitutionally vague and violates the Due

Process Clause       of   the Fourteenth Amendment.                  The City argues that Willis has failed to provide

facts to support his vagueness claim, and that even if the record were adequate to permit review of

Willis'   s claim,   LMC 09A. 4. 020A is             not void      for   vagueness.    We agree with the City and affirm

the superior court.



          Willis appears to challenge LMC 09A.4. 020A as unconstitutionally vague on its face.

  When it is alleged that a statute is wholly unconstitutional, the court looks not to the conduct of

the defendant, but to the face of the statute to determine whether any conviction under the statute

could   be constitutionally          upheld. "'   State v. Maciolek, 101 Wn.2d 259, 262 -63, 676 P. 2d 996 ( 1984)


 quoting State v. Hood, 24 Wn. App. 155, 158, 600 P. 2d 636 ( 1979)).

          An    ordinance       is sufficiently     specific      if two   requirements are met: "     First, criminality must

be defined with sufficient specificity to put citizens on notice concerning conduct they must avoid.

And second, legislated crimes must not be susceptible of arbitrary and discriminatory law

enforcement."        City      of Seattle   v.   Webster, 115 Wn.2d 635, 642 -43, 802 P. 2d 1333 ( 1990);                     accord




Kolender     v.   Lawson, 461 U. S. 352, 357 -58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 ( 1983).                              Here, both


requirements are satisfied.



           LMC 09A.4. 020A very clearly describes                          what   behavior is   proscribed,     i. e. "   asking for

           or   goods     as    a   charity"     while   on   a   freeway     onramp    or   other   enumerated       area.    LMC
money


09A. 4. 020( E).      The ordinance gives citizens and law enforcement alike precise direction about

what conduct        is forbidden,       and where        it is forbidden. Willis       complains     that the   ordinance would
45034 -8 -II




sweep in "     all charities         asking for    contributions ...           people requesting donations in support of

political campaigns            or   interest   groups ... [     and] people stranded on            the   side of a road.   Br. of


Appellant at 19. Even if we accept Willis' s position, it does not make the ordinance vague. Willis

does   not   argue    that LMC 09A.4. 020A "                  invest[ s] a police officer with discretion to define the


prohibited conduct."            Roulette v. City of Seattle, 850 F. Supp. 1442, 1446 ( W.D. Wash. 1994),

aff'd, 97 F. 3d 300 ( 9th Cir. 1996) (              emphasis added).            Rather, " the ordinance itself defines what


constitutes     an    infraction."             Roulette,   850     F.       Supp.    at    1446.   LMC      09A.4. 020A is not


unconstitutionally vague, and we reject Willis' s vagueness challenge.

IV.      EQUAL PROTECTION


         Willis argues that LMC 09A.4. 020A discriminates against " individuals that need help or

                                    of the Equal Protection Clause                        the Fourteenth Amendment.        Br. of
money" in       violation                                                           of




Appellant      at   21.    The City argues that Willis has failed to provide facts to support his equal

protection claim, and that even if the record were adequate to permit review of Willis' s claim,

LMC 09A.4. 020A does not impermissibly discriminate against the poor. We agree that the record

is not adequate to properly analyze Willis' s equal protection claim, and we hold that we

improvidently granted discretionary review of Willis' s equal protection challenge.

         As a threshold to any equal protection challenge, a party must establish that he or she is

similarly situated with other persons in a class who have received different treatment under the
same   law. State         v.   Osman, 157 Wn.2d 474, 484, 139 P. 3d 334 ( 2006).                         Willis argues that LMC


09A.4. 020A discriminates on the basis of poverty. But the record does not indicate whether Willis

is impoverished. It is true that the                municipal court           found Willis indigent.        But this finding does

not mean       that Willis      is below the poverty line —only                that he " lacks sufficient funds to prosecute




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45034 -8 -II



an appeal."      CP   at   115.   On this record, Willis cannot meet his burden to show that he is similarly

situated with members of the allegedly targeted class.

            Even if Willis could show that he was similarly situated with the impoverished, this record

is   not adequate     to determine the       merits of   Willis'         s equal protection claim. "     A defendant must


establish that he received disparate treatment because of membership in a class of similarly situated

individuals and that the disparate treatment was the result of intentional or purposeful

discrimination."           Osman, 157 Wn.2d      at   484.      Because Willis failed to raise the equal protection


issue in the municipal court, the record is insufficient for us to adequately determine the City' s

intent   or purpose        for passing LMC 09A. 4. 020A.                 Willis argues that the City failed to meet its

burden; however, because he never raised it in the municipal court, neither the City nor Willis had

the opportunity to present all of the facts necessary to decide this issue.

            Evidence of the challenged statute' s disparate impact may establish the requisite

discriminatory        intent   or purpose.    Vill. ofArlington Heights v. Metro. Hous. Dev. Corp., 429 U. S.

252, 266, 97 S. Ct. 555, 50 L. Ed. 2d 450 ( 1977). Absent a " clear pattern, unexplainable on grounds


other    than [ the alleged class] ...       impact   alone     is   not   determinative." Arlington Heights, 429 U. S.


at   266.    Here, nothing in the record speaks to the impact of LMC 09. 4. 020A, or how it is being
applied      in the field. Willis'     s allegation   that "[   o] fficers are not arresting charitable organizations

or    firefighters in      violation   of   this law, only       poor      people,"   is   without   substantiation.   Br. of


Appellant at 22. On this record, we are unable to perform a disparate impact inquiry.




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45034 -8 -II




        We dismiss Willis' s equal protection claim as improvidently granted, and we affirm the

superior court.




        A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




I concur:




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45034 -8 -II



        BJORGEN, A. C. J. ( concurring) —    The majority opinion holds, correctly, that the record is

not adequate to properly analyze Willis' s equal protection claims. The majority opinion also

concludes, however, that as a matter of law a finding of indigency does not necessarily mean that

Willis is below the poverty line for equal protection purposes. Whether correct or not, a

conclusion this elemental to the law' s treatment of the disadvantaged should not be made on an

inadequate record and without thorough briefing.

        In Douglas v. California, the Court held, using an equal protection analysis, that those

who are indigent have the right to public counsel for their first appeal as a matter of right. The

evil, Justice Douglas wrote, is


        discrimination   against   the indigent.   For there can be no equal justice where the
        kind of an appeal a man enjoys " depends on the amount of money he has."

372 U. S. 353, 355, 83 S. Ct. 814, 9 L. Ed. 2d 811 ( 1963) (   quoting Griffin v. Illinois, 351 U.S. 12,

19, 76 S. Ct. 585, 100 L. Ed. 891 ( 1956)).   5 With this opinion, the Supreme Court recognized that


indigency, when coupled with the restriction of a right of sufficient stature, is a classification that

triggers enhanced scrutiny under the equal protection clause. The result and reasoning of

Douglas remain vital. In 2005 the United States Supreme Court, relying principally on Douglas,

held that the due process and equal protection clauses also require the appointment of counsel for




5 The Supreme Court has recognized that due process and equal protection principles converge in
the Court' s analysis of this family of issues. Bearden v. Georgia, 461 U.S. 660, 665, 103 S. Ct.
2064, 76 L. Ed. 2d 221 ( 1983). The Court stated that " we generally analyze the fairness of
relations between the criminal defendant and the State under the Due Process Clause, while we
approach the question whether the State has invidiously denied one class of defendants a
substantial benefit available to another class of defendants under the Equal Protection Clause."
Bearden, 461 U. S. at 665.




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45034 -8 -II




defendants, convicted on their pleas, who seek access to first -tier review in the Court of Appeals.

Halbert v. Michigan, 545 U.S. 605, 610, 125 S. Ct. 2582, 162 L. Ed. 2d 552 ( 2005).

          The Supreme Court has also made clear that poverty, standing alone, is not a suspect

classification. Harris v. McRae, 448 U. S. 297, 323, 100 S. Ct. 2671, 65 L. Ed. 2d 784 ( 1980).

However,


          a classification based on poverty or wealth can become a suspect classification,
          subject to more rigid scrutiny than other classifications, when such classification
          interferes with a fundamental constitutional right.

16B AM. JUR. 2d Constitutional Law, §     904. This recognition was at work in Douglas and is


seen, although obliquely, in the Carolene Products footnote that laid one of the principal

doctrinal footings for enhanced scrutiny under the constitution:

          There may be narrower scope for operation of the presumption of constitutionality
          when legislation appears on its face to be within a specific prohibition of the
          Constitution, such as those of the first ten Amendments, which are deemed equally
          specific when held to be embraced within the Fourteenth. •

United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4, 58 S. Ct. 778, 82 L. Ed. 1234

 1938).


          The analysis was further refined in Bearden v. Georgia, 461 U. S. 660, 661, 665, 103 S.

Ct. 2064, 76 L. Ed. 2d 221 ( 1983),   which held that an indigent defendant' s probation may not be

revoked for failure to pay a fine and restitution, absent findings that the defendant was somehow
responsible for the failure or that alternative forms of punishment were inadequate. The Court

prefaced its Fourteenth Amendment analysis by stating that it has long been sensitive to the

treatment of indigents in our criminal justice system and citing a list of its cases dealing with the

 deprivation of the rights of an indigent person to counsel, appeals, and liberty. Bearden, 461

 U. S. at 664 -65.




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         Our state Supreme Court has walked consistently with these precedents. In State v.

Phelan, 100 Wn.2d 508, 514, 671 P. 2d 1212 ( 1983), the court applied an intermediate level of


scrutiny in determining that jail time must be credited against the discretionary minimum term

imposed under state law in effect before adoption of the Sentencing Reform Act of 1981, chapter

9. 94A RCW. Although our sentencing laws have changed, the court' s rationale for imposing

heightened scrutiny remains strong:

         Physical liberty, while not recognized as " fundamental ", is a basic human right and
         the poor, while not a suspect class, cannot be said to be fully accountable for their
         status. Since a denial of credit for presentence jail time involves both a deprivation
         of liberty in addition to that which would otherwise exist, and a classification based
         solely on wealth, we will apply an intermediate level of scrutiny in the present case.

Phelan, 100 Wn.2d        at   514.   Thus,   neither   the " fundamental"   status of the right nor the


 suspect" nature of the class are necessary for heightened scrutiny.

         When one lacks the money to eat properly, the ability to effectively ask others for help

becomes    critical.   When one is homeless or of fluctuating mental health, it may become

effectively impossible to navigate the mazes of a social service system that at times would baffle

a Theseus. Depending on one' s circumstances, the law' s restrictions on .the ability to ask

individuals for help may ultimately jeopardize life, a constitutional interest among the most

fundamental. This is not to argue that government may not ban aggressive panhandling on

freeway ramps. It is to argue that the courts should not make rulings touching on the scope of

the class of the poor for equal protection or due process purposes without a penetrating eye for




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45034 -8 -II




the facts of poverty in our nation and an acute review of what the case law requires in the world

as it is.




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