                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

INTERNATIONAL SOCIETY FOR                
KRISHNA CONSCIOUSNESS OF
                                               No. 01-56579
CALIFORNIA INC., a California
nonprofit, religious corporation;                 D.C. No.
EMIL BECA, one of its individual             CV-97-03616-CBM
members; COMMITTEE FOR HUMAN                   Central District
RIGHTS IN IRAN, a California public             of California,
benefit corporation; REZA NABATI,               Los Angeles
one of its individual members,                    ORDER
                 Plaintiffs-Appellees,        CERTIFYING A
                  v.                         DETERMINATIVE
                                              QUESTION OF
CITY OF LOS ANGELES, a California
                                               LAW TO THE
Municipal Corporation; STEPHEN
                                               CALIFORNIA
YEE, Airport Manager; GILBERT A.
                                             SUPREME COURT
SANDOVAL, Chief of Airport Police,
             Defendants-Appellants.
                                         
                      Filed June 9, 2008

       Before: Harry Pregerson, Stephen S. Trott, and
              Richard A. Paez, Circuit Judges.


                            ORDER

   We certify the question set forth in Part II of this order to
the California Supreme Court. The answer to the certified
question depends upon California law. The California
Supreme Court’s answer will be determinative of the appeal
presently before us. We find no clear controlling precedent in
the decisions of the California Supreme Court. We therefore
respectfully request that the California Supreme Court answer

                              6475
6476      INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES
the question presented below. If the court declines certifica-
tion, we will “predict as best we can what the California
Supreme Court would do in these circumstances.” See
Pacheco v. United States, 220 F.3d 1126, 1131 (9th Cir.
2000).

                I.   CAPTION AND COUNSEL

A.     The caption of the case is:

                  No. 01-56579
   INTERNATIONAL SOCIETY FOR KRISHNA CON-
  SCIOUSNESS OF CALIFORNIA, INC., EMIL BECA,
   COMMITTEE FOR HUMAN RIGHTS IN IRAN, and
                REZA NABATI,
               Plaintiffs-Appellees,

                               v.

       CITY OF LOS ANGELES, STEPHEN YEE, and
               GILBERT A. SANDOVAL,
                 Defendants-Appellants.

B.     The names and addresses of counsel for the parties are:

     For Plaintiffs-Appellees: David M. Liberman, Law
     Offices of David M. Liberman, 9709 Venice Blvd.,
     #4, Los Angeles, California 90034; Barry A. Fisher,
     Fleishman & Fisher, 1925 Century Park East, Suite
     2000, Los Angeles, California 90067.

     For Defendants-Appellants: Rockard J. Delgadillo,
     Kelly Martin, D. Timothy Daze, City Attorney’s
     Office, One World Way, P.O. Box 92216, Los
     Angeles, California 90009; John M. Werlich, Law
     Offices of John M. Werlich, 1563 Shadowglen
     Court, Westlake Village, California 91361.
            INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES                6477
C.     The designation of party to be deemed petitioner:

  If the request for certification is granted, the Defendants-
Appellants should be deemed the petitioners in the California
Supreme Court.

                    II.   CERTIFIED QUESTION

  The dispositive question of state law to be answered is: Is
Los Angeles International Airport a public forum under the
Liberty of Speech Clause of the California Constitution?

   Our phrasing of the question should not restrict the Califor-
nia Supreme Court’s consideration of the issues involved.
“We will accept the decision of the California Supreme Court,
which is the highest authority on the interpretation of Califor-
nia law.” Grisham v. Philip Morris U.S.A., 403 F.3d 631, 634
(9th Cir. 2005) (per curiam) (noting that the Ninth Circuit is
bound to follow the holdings of the California Supreme Court
when applying California law).

                   III.   STATEMENT OF FACTS

  This case centers on whether Los Angeles International
Airport is a public forum under the California Constitution.

     Section 23.27(c)1 of the Los Angeles Administrative Code
  1
    The challenged provision became effective on May 15, 1997, as sec-
tion 23.27(c) of the Los Angeles Administrative Code. Effective June 19,
2000, however, section 23.27 of the Los Angeles Administrative Code
was deleted and transferred to section 171.02 of the Los Angeles Munici-
pal Code. See L.A., Cal., Admin Code § 23.27, available at http://
www.amlegal.com/los_angeles_ca/; L.A., Cal., Mun. Code § 171.02,
available at http://www.amlegal.com/los_angeles_ca/. Nevertheless, we
follow the practice of the parties and generally refer to the provision chal-
lenged in this case as “section 23.27(c).” It provides in relevant part:
      (c)(1) No person shall solicit and receive funds inside the airport
      terminals at the Airport.
6478     INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES
prohibits any person from soliciting and immediately receiv-
ing funds at Los Angeles International Airport (“LAX”)
inside the terminals, parking areas and on the sidewalks adja-
cent to the parking areas or airport terminals. On May 13,
1997, the International Society for Krishna Consciousness
(“ISKCON”) brought suit against the City of Los Angeles
(“City”) in the Central District of California, alleging that sec-
tion 23.27(c) violates California’s Liberty of Speech Clause
and the First Amendment of the United States Constitution.
(Dist. Ct. Case. No. CV 97-03616).

   The Honorable John G. Davies was assigned to the case.
On May 26, 1998, Judge Davies granted ISKCON’s motion
for summary judgment and denied the City’s cross-motion for

   (2) No person shall solicit and receive funds in the parking areas
   at the Airport.
   (3) No person shall solicit and receive funds on the sidewalks
   adjacent to the airport terminals or the sidewalks adjacent to the
   parking areas at the Airport.
   (4) Subdivisions (c)(1), (c)(2), and (c)(3) apply only if the solici-
   tation and receipt of funds is conducted by a person to or with
   passers-by in a continuous or repetitive manner. Nothing herein
   is intended to prohibit the distribution of flyers, brochures, pam-
   phlets, books, or any other printed or written matter as long as
   such distribution is not make with the intent of immediately
   receiving funds, as defined in Subdivision (c)(5), at the locations
   referred to in (c)(1), (c)(2), or (c)(3).
   (5) “Solicit and receive funds” means any written or oral request
   for (A) the donation of money, alms, property or anything else of
   value, or, (B), the pledge of a future donation of money, alms,
   property, or anything else of value, or, (C) the sale or offering for
   sale of any property upon the representation, express or implied,
   that the proceeds of such sale will be used for a charitable or reli-
   gious purpose.
   (6) If any provision of Sec. [23.27(c)] is declared invalid, the
   validity of any other provision contained in Sec. [23.27(c)] shall
   remain in effect.
          INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES    6479
summary judgment. Judge Davies exercised supplemental
jurisdiction over ISKCON’s state law claim and found LAX
to be a public forum under California’s “basic incompatibili-
ty” test. Judge Davies held that because section 23.27(c) sin-
gled out solicitation, it amounted to an impermissible content-
based restriction under California’s Liberty of Speech Clause.

   On June 26, 1998, the City filed its first Notice of Appeal
to the Ninth Circuit (No. 98-56215). The court stayed briefing
in No. 98-56215 pending the results of a Request for Certifi-
cation to the California Supreme Court in Los Angeles Alli-
ance for Survival v. City of Los Angeles, 157 F.3d 1162 (9th
Cir. 1998) (“Alliance I”). In Alliance I, we asked the Califor-
nia Supreme Court whether an ordinance that focuses on the
public solicitation of funds should be considered content dis-
criminatory under California’s Liberty of Speech Clause. On
March 2, 2000, the California Supreme Court answered that
question in Los Angeles Alliance for Survival v. City of Los
Angeles, 993 P.2d 334 (Cal. 2000) (“Alliance II”). The Alli-
ance II court held that ordinances that single out the public
solicitation of funds for distinct treatment should not be
viewed as content-based under California’s Liberty of Speech
Clause. Id. at 357. Accordingly, we vacated Judge Davies’s
summary judgment order in favor of ISKCON in case No. 98-
56215 and remanded the case for further proceedings consis-
tent with Alliance II.

   Upon remand, the matter was reassigned to the Honorable
Consuelo B. Marshall.2 On August 2, 2001, the district court
again granted summary judgment in favor of ISKCON and
against the City. Like Judge Davies, Judge Marshall evaluated
the constitutionality of the ordinance under California law and
found LAX to be a public forum under California’s “basic
incompatibility” test. Int’l Soc’y for Krishna Consciousness of
Cal., Inc. v. City of L.A., No. CV 97-03616, 2001 WL
1804795 (C.D. Cal. Aug. 2, 2001). Judge Marshall then deter-
  2
   Judge Davies retired in the interim.
6480     INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES
mined that section 23.27(c) was not a reasonable time, place,
and manner restriction on the solicitation of funds at LAX.
Because Judge Marshall found section 23.27(c) unconstitu-
tional under California law, she declined to engage in a First
Amendment analysis to determine whether it was constitu-
tional under federal law.

   On August 29, 2001, the City filed its second Notice of
Appeal to the Ninth Circuit. (No. 01-56579 — the instant
appeal.) A Ninth Circuit panel (“original panel”) was assigned
to the case.

  Two weeks later, the events of 9/11 transpired.

   On January 31, 2002, the City submitted various filings to
our court, including a Motion for Certification to the Califor-
nia Supreme Court on the following question of law: “Is a
municipally owned airport a public forum under California’s
Liberty of Speech Clause?” A motions panel denied the City’s
certification motion on April 15, 2002. Our docket notes that
the motion was denied pursuant to the “panel’s discretion.”

   On December 2, 2002, the original panel heard argument in
this case. The panel asked the parties to discuss the certifica-
tion question again during oral argument. The panel granted
ISKCON’s oral request to provide the court with supplemen-
tal briefing. ISKCON filed a supplemental brief on December
12, 2002, and the City filed a response to ISKCON’s supple-
mental brief on January 22, 2003.

  While the parties awaited the panel’s decision, the City
enacted section 171.07 of the Los Angeles Municipal Code —
a new ordinance addressing the solicitation of funds at LAX.
Section 171.07 became effective on December 16, 2002 and
remains in effect today. It allows organizations to apply for a
permit to “solicit and receive funds” in certain “locations
assigned in a written permit by [LAX’s] General Manager.”
L.A., Cal., Mun. Code § 171.07(B)(1)-(B)(2). It explicitly
           INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES                 6481
states that “provisions of this ordinance are . . . temporary and
provisional pending the outcome of litigation challenging
[L.A. Admin. Code § 23.27(c)].”3 Id. § 171.07(G)(1) (empha-
sis added).

  In light of the passage of section 171.07, ISKCON filed a
new suit in the Central District of California on January 13,
2003. (District Court Case No. CV 03-00293.). ISKCON’s
new suit challenged the constitutionality of section 171.07
under both the California and federal constitutions. The suit
was transferred to Judge Marshall because it related to No.
CV 97-03616.

   On March 21, 2003, the original Ninth Circuit panel issued
an order in this case (No. 01-56579).4 The panel’s order
stated:

      This case involves California plaintiffs and Califor-
      nia defendants who disagree primarily over whether
      a California municipal ordinance violates the Cali-
      fornia Constitution. While we express no view
      whether appellees’ federal claims were sufficient to
      support the district court’s invocation of the princi-
      ple of federal constitutional avoidance, we think it
      fair to say that the case raises “state law questions
      that present significant issues . . . with important
      public policy ramifications.” Kremen v. Cohen, 314
      F.3d 1127, 1129 (9th Cir. 2003). Whether the Liberty
      of Speech Clause of the California Constitution
      should be interpreted more expansively than the fed-
      eral First Amendment in a context implicating sub-
      stantial state police power interests is a question
      that would benefit from consideration by the state
  3
     This limiting clause is the reason that this appeal, No. 01-56579, is not
moot.
   4
     It does not appear that the panel was informed of the enactment of sec-
tion 171.07 before the panel issued its March 21, 2003 Order.
6482     INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES
    judiciary. Accordingly, we intend to certify this case
    to the California Supreme Court.

Int’l Soc’y for Krishna Consciousness of Cal., Inc. v. City of
L.A., 59 F. App’x 974 (9th Cir. 2003) (unpublished order)
(emphasis added). The panel remanded the case to the district
court for the limited purpose of allowing the parties to supple-
ment the record with post-9/11 evidence that would aid the
California Supreme Court in its deliberations. Id.

   In the meantime, ISKCON moved for a preliminary injunc-
tion in CV 03-00293. On April 28, 2003, Judge Marshall
granted ISKCON’s motion under federal law. Judge Marshall
declined ISKCON’s request to apply state law because the
original Ninth Circuit panel in this appeal had just stated in
its March 21, 2003 Order that it intended to certify the state
law issue to the California Supreme Court. Accordingly,
Judge Marshall declined to exercise supplemental jurisdiction
over the state law claim, dismissed the state law claim from
the suit, and applied federal law to ISKCON’s motion.

   In the following years, the parties engaged in extensive dis-
covery in both cases. The parties eventually filed cross-
motions for summary judgment in CV-03-00293. On Septem-
ber 18, 2006, Judge Marshall granted summary judgment for
the City and denied summary judgment for ISKCON. Relying
on the Supreme Court’s 1992 decision in International Soci-
ety for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672
(1992), Judge Marshall held that LAX is a non-public forum.
Judge Marshall then determined that section 171.07 is reason-
able and constitutionally valid.

  On November 16, 2006, ISKCON appealed Judge Mar-
shall’s ruling in CV-03-00293 (No. 06-56660 — the related
appeal). Appeal No. 06-56660 was referred to the original
Ninth Circuit panel. On December 1, 2006, the original panel
ordered the parties to apprise them of the status of the supple-
mental record in CV-97-03616 and requested briefing as to
           INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES      6483
whether the two related cases, Nos. 01-56579 and 06-56660,
should be consolidated.

   After reviewing the parties’ initial status reports, the origi-
nal panel issued an order on December 28, 2006 stating that:
(1) No. 01-56579 was withdrawn from consideration; (2) No.
01-56579 should be grouped as a related case with 06-56660;
and (3) the parties must submit a Joint Status Report no later
than March 1, 2007 to inform the court whether the two
appeals should be consolidated. The order further stated that
whether or not the appeals were consolidated, they should be
assigned in the normal course to the same randomly-drawn
panel. Finally, the order stated that all further motions should
be referred to the motions panel, or, if a new merits panel
were assigned, to the merits panel.

   On February 28, 2007, the parties filed a Joint Status
Report for Appeal No. 01-56579. On April 6, 2007, the Ninth
Circuit issued an order stating that “pursuant to the parties’
status report, [Nos. 01-56579 and 06-56660] shall not be con-
solidated.” The order further stated, however, that the cases
should be heard by the same merits panel. The order also per-
mitted the parties to file replacement briefs and supplemental
excerpts of record in the 01-56579 appeal.

  The parties’ replacement briefs and supplemental excerpts
were filed in the summer of 2007. These documents primarily
address the changes made to LAX as a result of 9/11. We
heard argument on the replacement briefs in both appeals on
December 4, 2007.

     IV.     EXPLANATION OF OUR REQUEST FOR
                   CERTIFICATION

   We turn to the question that compels our certification
order: Is Los Angeles International Airport a public forum
under the Liberty of Speech Clause of the California Constitu-
tion? We certify this question because we conclude that there
6484     INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES
is no clear controlling precedent on this issue, and because the
answer given by the California Supreme Court will be deter-
minative of the appeal pending before us. See Cal. Rules of
Court 8.548(a). We also certify this question due to the unique
procedural history of this case.

   “It is well-established that [federal] court[s] should avoid
adjudication of federal constitutional claims when alternative
state grounds are available . . . even when the alternative
ground is one of state constitutional law.” Hewitt v. Joyner,
940 F.2d 1561, 1565 (9th Cir. 1991). When “the state consti-
tutional provisions are co-extensive with related federal con-
stitutional provisions, we may decide the federal
constitutional claims because that analysis will also decide the
state constitutional claims.” Vernon v. City of L.A., 27 F.3d
1385, 1391-92 (9th Cir. 1994). However, when the state pro-
visions offer more expansive protection than the federal con-
stitution, we should first address the state constitutional claim
in order to avoid unnecessary consideration of the federal
constitutional claim. Id. at 1392.

   Article I, section 2, subdivision (a) of the California Consti-
tution provides: “Every person may freely speak, write and
publish his or her sentiments on all subjects, being responsible
for the abuse of this right. A law may not restrain or abridge
liberty of speech or press.” Most state constitutions have simi-
larly worded provisions, and courts frequently have observed
that the language of those provisions is broader than that of
the freedom of speech provision of the First Amendment.5
See, e.g., Alliance II, 993 P.2d at 342 & nn. 10-11 (citing
cases). The California Supreme Court has likewise “indicated
that the California Liberty of Speech Clause is generally
broader and more protective than the free speech clause of the
First Amendment.” Id.; see also Fashion Valley Mall, LLC v.
NLRB, 172 P.3d 742, 749 (Cal. 2007) (“It is beyond perad-
  5
   The First Amendment provides: “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend I.
         INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES       6485
venture that article I’s free speech clause enjoys existence and
force independent of the First Amendment’s . . . [T]he Cali-
fornia Constitution is now, and has always been, a document
of independent force and effect particularly in the area of indi-
vidual liberties. As a general rule, article I’s free speech
clause and its right to freedom of speech are not only as broad
and as great as the First Amendment’s, they are even broader
and greater.”) (internal citations, quotation marks, and alter-
ations omitted).

   Since the California Supreme Court decided In re Hoffman,
434 P.2d 353 (Cal. 1967), California courts have developed
an extensive body of case law addressing whether the govern-
ment regulation of speech in certain locations violates the
Liberty of Speech Clause. Under California law, if the loca-
tion is a “public forum,” the regulation on speech must be rea-
sonable in time, place, and manner. If the location is a “non-
public forum,” the regulation on speech need only survive a
more lenient inquiry.

   Although this “forum” terminology is derived from First
Amendment law, the California courts have developed their
own criteria for determining whether a location is a public
forum under the California constitution. Nonetheless, there is
still some confusion about how properly to articulate Califor-
nia’s public forum test. For example, in Carreras v. City of
Anaheim, our court stated that “the test under California law
is whether the communicative activity ‘is basically incompati-
ble with the normal activity of a particular place at a particu-
lar time.’ ” 768 F.2d 1039, 1045 (9th Cir. 1985) (quoting
Prisoners Union v. Cal. Dep’t of Corrs., 185 Cal. Rptr. 634,
639 (Cal. Ct. App. 1982), abrogated on other grounds as rec-
ognized in Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 857 n.8
(9th Cir. 2004)). More recently, the California Supreme Court
explained that a shopping mall is a public forum because it is
analogous to other spaces that have “immemorially been held
in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts
6486      INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES
between citizens, and discussing public questions.” Fashion
Valley Mall, 172 P.3d at 745-46 (internal quotation marks
omitted). Finally, other California cases focus more on the
degree of access the public has to the property. See, e.g., Gol-
den Gateway Ctr. v. Golden Gateway Tenants Ass’n, 29 P.3d
797, 810 (Cal. 2001) (holding that a privately owned retail
and residential apartment complex was “not the functional
equivalent of a traditional public forum” because access to the
complex was “carefully limit[ed]”).

   Thus, how to articulate California’s public forum test, and
how that test differs from its federal counterpart, are not abun-
dantly clear. But regardless of the test’s precise wording, it is
undisputed that California courts tend to take a more expan-
sive approach than federal courts in deciding whether a partic-
ular location qualifies as a public forum. See, e.g., Carreras,
768 F.2d at 1044, n.7 (citing several cases in which the Cali-
fornia courts have interpreted the California Liberty of Speech
Clause to provide greater protection for expressive activity
than does the First Amendment).

   However, the California Supreme Court has never squarely
addressed whether an airport’s terminals, sidewalks, or park-
ing lots are public fora under the Liberty of Speech Clause of
the California Constitution.6 By contrast, the United States
Supreme Court has determined that an airport terminal is not
a public forum under the First Amendment. See Lee, 505 U.S.
672 (1992) (holding that an airport terminal operated by a
public authority is a non-public forum, and thus a ban on
solicitation need only satisfy a reasonableness standard).
Notably, Lee was decided over nine years before the events
of 9/11 caused airports around the world to increase their
security measures and to restrict general access to certain
  6
    In People v. Fogelson, 577 P.2d 677 (Cal. 1978), the California
Supreme Court held that a licensing ordinance that regulated solicitation
at LAX was facially unconstitutional on vagueness grounds. The court did
not engage in a public forum analysis.
         INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES        6487
areas of their terminals. Accordingly, we are not certain how
the California Supreme Court would apply California’s public
forum doctrine to the restrictions on solicitation at LAX.

   We conclude that the potential conflict between the appli-
cation of the First Amendment and the California Constitution
regarding freedom of speech at California’s airports is one
that the California Supreme Court should have the opportu-
nity to address and resolve. As the original panel noted,
“[t]his case involves California plaintiffs and California
defendants who disagree primarily over whether a California
municipal ordinance violates the California Constitution.”
Given the complexity of California’s public forum doctrine,
the Supreme Court’s 1992 decision in Lee, and the changes
made at LAX and other state airports following the events of
9/11, we agree with the original panel that this case is appro-
priate for certification. We further note that the parties oper-
ated on the assumption that this case would be certified when
they engaged in extensive supplemental discovery from 2003
to 2006. Moreover, Judge Marshall operated on that assump-
tion when she declined to exercise supplemental jurisdiction
over the California claim in case No. CV 03-00293 (No. 06-
56660 on appeal).

  For these reasons, we submit this request for certification.

           V.   ACCOMPANYING MATERIALS

   The clerk of this court is hereby directed to file in the Cali-
fornia Supreme Court, under official seal of the United States
Court of Appeals for the Ninth Circuit, copies of all relevant
briefs and excerpts of record, and an original and ten copies
of this request with a certificate of service on the parties, pur-
suant to California Rules of Court 8.548(c), (d).

   Further proceedings before us are stayed pending the Cali-
fornia Supreme Court’s decision whether it will accept certifi-
cation, and if so, our receipt in due course of the answer to the
6488     INTERNATIONAL SOCIETY v. CITY OF LOS ANGELES
certified question of California law. This case is withdrawn
from submission until further order of this court. The panel
will resume control and jurisdiction of this case upon receiv-
ing a decision from the California Supreme Court or upon that
court’s decision to decline to answer the certified question.
The parties shall file a joint report informing this court of
whether the California Supreme Court has accepted the certi-
fied question, after that determination is made. If the Califor-
nia Supreme Court accepts the certified question, the parties
shall file a joint status report to our court every six months
after the date of acceptance, or more frequently if circum-
stances warrant.

  IT IS SO ORDERED.
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