The use of highway overpasses by activists

Sanctity of Human Life Network v. California Highway Patrol (2003) ,
Cal.App.4th

[No. C032534. Third Dist. Jan. 27, 2003.]

SANCTITY OF HUMAN LIFE NETWORK et al., Plaintiffs and Appellants, v.
CALIFORNIA HIGHWAY PATROL, Defendant and Respondent.

(Superior Court of Sacramento County, No. 98AS00327, William M. Gallagher,
Judge.)

(Opinion by Nicholson, J., with Raye, J., concurring. Concurring opinion by
Raye, J. Dissenting opinion by Scotland, P. J.)

COUNSEL

Law Offices of Scott M. Kendall and Scott M. Kendall for Plaintiffs and
Appellants.

Bill Lockyer, Attorney General, David S. Chaney, Assistant Attorney General,
James M. Schiavenza, Jacob Appelsmith, Nina Thomson, and Kenneth L. Swenson,
Deputy Attorneys General, for Defendant and Respondent.

OPINION

NICHOLSON, J.-

Members of the Sanctity of Human Life Network (plaintiffs) stood on
sidewalks of freeway overpasses during rush hours and held signs, visible to
motorists below on the freeways, communicating their views concerning
abortion. Responding to reports of freeway congestion caused by plaintiffs'
activities, {Slip Opn. Page 2} officers of the California Highway Patrol
(CHP) directed plaintiffs to terminate their activities.

Plaintiffs filed this injunctive and declaratory relief action, seeking to
enjoin the CHP from interfering with their display of handheld signs on
freeway overpasses during rush hours on January 22, the anniversary of the
United States Supreme Court's decision in Roe v. Wade (1973) 410 U.S. 113
[35 L.Ed.2d 147]. After trial, the court entered judgment in favor of the
CHP.

We find that the statutes, Vehicle Code sections 21465 and 21467, under
which the CHP claimed the power to terminate plaintiffs' activities do not
apply to plaintiffs' activities. However, we also conclude the CHP, under
the facts presented at trial, acted appropriately pursuant to its authority
to direct traffic. (See Veh. Code, § 2410.) We further conclude that the
CHP's actions in this case did not violate plaintiffs' free speech rights.
Accordingly, we modify the trial court's judgment to grant to plaintiffs
declaratory relief only to the extent of declaring that the CHP may not
interfere with plaintiffs' activities under the authority of Vehicle Code
sections 21465 and 21467 and otherwise affirm the judgment. (Hereafter,
unspecified code citations are to the Vehicle Code.)


TRIAL COURT PROCEEDINGS
As reflected in the statement of decision, the issue litigated at trial was
whether plaintiffs can display handheld signs from freeway overpasses to the
traffic below during rush hours on January 22, the Roe v. Wade anniversary
date. In 1997 {Slip Opn. Page 3} and 1998, the CHP ordered plaintiffs to
take down the signs. The CHP intends to continue to issue such orders under
the authority of sections 21465 and 21467 (governing display of traffic
signs and declaring every prohibited sign a public nuisance) and Penal Code
section 372 (relating to failure to remove a public nuisance). While
plaintiffs objected to the statement of decision on several grounds, they
did not dispute these facts.

For purposes of trial, the parties stipulated that (1) plaintiffs conducted
their demonstrations on sidewalks on freeway overpasses rather than in the
roadway, (2) the freeway overpasses involved are enclosed with cyclone
fencing so there is no danger of signs falling onto the freeway, and (3)
plaintiffs do not claim a right to attach their signs to public property.

On January 22, 1997, plaintiffs held signs on four freeway overpasses
between 6:30 and 8:30 in the morning. An officer of the CHP arrived at one
of the locations at about 7:30 a.m. After some discussion concerning
plaintiffs' right to display the signs and the arrival of other officers,
the officers took plaintiffs' signs. At other overpasses, CHP officers told
plaintiffs they must leave, which they did.

In 1998, plaintiffs displayed their handheld signs on freeway overpasses
during rush hour the morning of January 21 until they were told to leave by
CHP officers. The CHP officers were dispatched to the freeway overpasses in
response to complaints that plaintiffs' activities were causing freeway
{Slip Opn. Page 4} congestion. Plaintiffs were told they had to remove the
signs. On the afternoon of January 22, 1998, plaintiffs planned to gather on
freeway overpasses, displaying their handheld signs, between 3:30 and 5:00
p.m. At one overpass, at approximately 4:30 p.m., officers of the Sacramento
Police Department arrived, cited plaintiffs and told them they had to leave.
CHP officers were present but did not interact with plaintiffs. Plaintiffs
held signs and demonstrated on unspecified dates in locations other than
freeway overpasses with no interference from the CHP.


DISCUSSION I Vehicle Code Traffic Sign Statutes
As noted, the CHP has terminated plaintiffs' activities on freeway
overpasses under the purported authority of sections 21465 and 21467. The
CHP officers who testified at trial stated they would continue to remove
prohibited signs in view of freeway motorists under this authority, although
the officers were less than clear concerning what is a prohibited sign.
Plaintiffs assert these Vehicle Code sign statutes do not apply to their
signs. After consideration of the statutes, their context within the Vehicle
Code, and their legislative history, we agree with plaintiffs that sections
21465 and 21467 do not apply to their signs.

While section 21465 prohibits certain signs, section 21467 merely provides
authority for the CHP to remove such prohibited signs. We therefore focus on
section 21465. {Slip Opn. Page 5}

Section 21465 is found in division 11, chapter 2, article 3 of the Vehicle
Code. Division 11 relates generally to rules of the road, while chapter 2 of
division 11 relates to traffic signs, signals, and markings, and article 3
of that chapter designates offenses relating to traffic devices.

Section 21465 provides: "No person shall place, maintain, or display upon,
or in view of, any highway any unofficial sign, signal, device, or marking,
or any sign, signal, device, or marking which purports to be or is an
imitation of, or resembles, an official traffic control device or which
attempts to direct the movement of traffic or which hides from view any
official traffic control device." There are two categories of prohibited
signs, signals, devices, and markings under the language of the statute.
They are (1) unofficial signs, signals, devices, or markings and (2) signs,
signals, devices, or markings which (a) purport to be or are imitations of,
or resemble, an official traffic control device, (b) attempt to direct the
movement of traffic, or (c) hide from view any official traffic control
device. Plaintiffs' signs did not meet the description of signs in the
second category. Therefore, we must determine whether plaintiffs' signs were
prohibited because they are in the first category.

We need not consider what is a signal, device, or marking because it has
been agreed throughout this litigation that what plaintiffs were displaying
were signs. An "unofficial sign," as opposed to an official sign, appears to
be a traffic sign not placed by governmental entities, although nowhere in
the Vehicle {Slip Opn. Page 6} Code is "unofficial sign" defined. (See §
21351 [allowing governmental entities to place traffic signs, signals and
other traffic control devices].)

During trial, the CHP's expert on the Vehicle Code, Officer Scott Hall, who
teaches the Vehicle Code at the Highway Patrol Academy and is authorized to
speak authoritatively concerning the meaning of the Vehicle Code for the
CHP, testified concerning the CHP's enforcement of section 21465. His
testimony reveals that the CHP does not have a clear or articulable
definition of the scope of section 21465. Asked to explain the presence,
considering section 21465, of certain signs within view from the freeway,
Officer Hall testified: "Well, first of all, we don't enforce these signs.
We enforce the official traffic control devices. We teach these are what
they are. [ Sic .] [¶] These signs here are enforced by another department.
I don't know if they have permits. I don't know if they're exempt from a
permit. [¶] The fact that they're there tells us that somebody else who
regulates these signs has either given them permission or has allowed them
to be there." While he agreed billboards are unofficial signs, he simply
stated that the CHP does not "enforce these signs." He continued: "There's
two different types of signs. There's official, and there's permitted. [¶]
An official sign regulates, warns and guides. The Department of
Transportation puts up official signs. That's what we enforce. [¶] Anything
else is unofficial. Unless you have a permit or you're exempt, you can't
have it. That's what it is." The CHP's view is that bus advertising and
bumper {Slip Opn. Page 7} stickers do not violate section 21465. When asked
why that is so, the officer replied: "You got me." Finally, Officer Hall
testified that determination of what a prohibited sign is under section
21465 is purely a matter of discretion for the CHP: "[I]f this sign were a
visual hazard, we would investigate it and go up to 'em, find out if they
had a permit for it and what the parameters of it were for. [¶] That's what
21467 says. If we deem it a visual hazard, we can take it down."

In the Vehicle Code, a "highway" is "a way or place of whatever nature,
publicly maintained and open to the use of the public for purposes of
vehicular travel. Highway includes street." (§ 360.) This broad definition
is consistent with the CHP's understanding and enforcement efforts. Officer
Hall testified that a "highway" is "pretty much any road that encompasses
the main travel portion of the roadway, sidewalks, et cetera."

Applying these definitions to the terms used in the Vehicle Code, section
21465 prohibits any unofficial sign, meaning any non-governmental traffic
sign, in view of any public place used for vehicular traffic. What is a
traffic sign is the only ambiguity remaining. The plain meaning of
"unofficial sign," taken out of the context of the statutory scheme relating
to traffic signs, might suggest that the statute refers to any sign, traffic
related or not, that was not placed there by the government. While the plain
meaning, without consideration of the context, may lead to this
interpretation, other canons of statutory interpretation preclude this
interpretation. {Slip Opn. Page 8}

The goal of statutory interpretation is to determine and apply the
Legislature's intent. ( Collection Bureau of San Jose v. Rumsey (2000) 24
Cal.4th 301 , 309-310.) That intent is typically determined from the plain
meaning of the statute. If, however, application of an apparently
unambiguous statute would lead to an absurd result, the court can presume
the Legislature did not intend the apparent meaning. In such cases, the
court must engage in further statutory construction. ( Times Mirror Co. v.
Superior Court (1991) 53 Cal.3d 1325 , 1334, fn. 7.)

It cannot be seriously argued that the Legislature intended to prohibit any
unofficial sign in view of a roadway. This would include billboards, house
numbers, bus advertising, bumper stickers, and a host of other signs that
are everywhere to be found in view of roadways. The prohibition in section
21465 bears no contextual relation to state statutes and local ordinances
concerning private signs. Furthermore, the Legislature did not intend to
prohibit unofficial signs only in view of a freeway. "Highway" has a
specific meaning, including "streets," in the Vehicle Code (§ 360), and
modern freeways did not exist when the predecessor of section 21465 was
enacted in 1929. (See former § 81.5 [enacted in 1957, defining "freeway"].)

We must construe statutes in the context in which the Legislature placed
them. ( Collection Bureau of San Jose v. Rumsey, supra, 24 Cal.4th at p.
310.) Here, section 21465 is part of comprehensive legislation concerning
traffic signs. It does not purport to govern any other type of sign. As
noted {Slip Opn. Page 9} above, chapter 2 of division 11 of the Vehicle Code
relates to traffic signs, signals, and markings, and article 3 of chapter 2
provides for offenses related to those traffic devices. The context of
section 21465 supports the conclusion that the Legislature did not intend to
regulate all non-governmental signs, only those relating to traffic. For
example, a private landowner cannot post a speed limit sign within view of
the roadway. The same landowner, however, does not violate section 21465,
interpreted in its context as a prohibition on private traffic signs, by
posting a "no trespassing" sign visible from the roadway.

One might argue that the first category of prohibited signs in section 21465
-- unofficial signs -- must be interpreted separately from the second
category of prohibited signs -- signs which purport to be or are an
imitation of, or resemble, an official traffic control device or which
attempt to direct the movement of traffic or which hide from view any
official traffic control device -- in order to give effect to the term
"unofficial sign." This approach to the interpretation of the statute raises
as many problems as it solves. For example, if the second category of signs
is interpreted without regard to the first category, even official traffic
signs are prohibited because an official traffic sign certainly purports to
be an official traffic control device. Construing the two categories
together to prohibit only unofficial traffic signs is the only way to avoid
results obviously unintended by the Legislature. {Slip Opn. Page 10}

The legislative history of section 21465 supports this contextual
interpretation of that provision. The first predecessor of section 21465,
former section 114 1/2, subdivision (b), enacted in 1929, provided: "It
shall be unlawful for any person to place or maintain or to display upon or
in view of any street or highway any unofficial sign, signal or device which
purports to be or is an imitation of or resembles an official traffic sign
or signal, or which attempts to direct the movement of traffic or which
hides from view any official traffic sign or signal." (Stats. 1929, ch. 253,
§ 46, p. 538.) As can be seen, the class of prohibited signs is not broken
down into two categories. "Unofficial sign" is joined with "which purports
to be or is an imitation of or resembles an official traffic sign . . . ."

The pattern for the 1929 provision was section 13 of the Uniform Motor
Vehicle Act Regulating the Operation of Vehicles, one of four separate acts
comprising the Uniform Motor Vehicle Code. When codifying former 114 1/2,
subdivision (b), the Legislature adopted the language of the uniform act, as
did 44 other states by 1937. (11 Uniform Laws Annotated (1938), Motor
Vehicles, pp. 5, 16; Rep. of the Assem. Interim Com. on Motor Vehicle Laws
(1937) p. 5 (1937 Assem. Rep.).)

In 1933, the Legislature requested the California Code Commission to prepare
a recodification of all existing motor vehicle laws. The next year, the code
commission presented to the Legislature the Proposed Vehicle Code and
commented: "The California Code Commission . . . has endeavored to draft the
{Slip Opn. Page 11} Vehicle Code without effecting any substantive changes,
except those to which attention is called in the notes following this
preface." (Proposed Veh. Code, Cal. Code Com. (1934) p. v.) The notes did
not mention the section at issue here and, thus, no substantive change was
intended. ( Id . at pp. vii-xiii.) This recodification, "being merely a
codification of then existing laws," was enacted in 1935. (1937 Assem. Rep.,
p. 5.) During this recodification process, former section 473, subdivision
(a), in place of former section 114 1/2, subdivision (b), was enacted. The
new section contained the modern language splitting the prohibited signs
into two categories. It provided: "No person shall place, maintain or
display upon, or in view of, any highway any unofficial sign . . . or any
sign . . . which purports to be or is an imitation of, or resembles, an
official traffic sign . . . ." (Stats. 1935, ch. 27, p. 169.) In 1959, the
section number of the statute was changed to section 21465, as it currently
stands. (Stats. 1959, ch. 3.)

The change in wording of the statute, splitting the prohibited signs into
two categories, was, therefore, not meant to be a substantive change to the
statute. It is unclear why the code commission made that change. No other
state has done so. For example, Colorado's statute provides: "No person
shall place, maintain, or display upon or in view of any highway any
unauthorized sign, signal, marking, or device which purports to be or is an
imitation of or resembles an official traffic control device or railroad
sign or signal, or which attempts to direct the movement of traffic, or
which hides from view or {Slip Opn. Page 12} interferes with the
effectiveness of any official traffic control device . . . ." (Colo. Rev.
Stat. § 42-4-606.) This specific language is found in most state statutes.
(See, e.g., Ala. Code § 32-5A-36; Ark. Code Ann. § 27-52-109; Conn. Gen.
Stat. Ann. § 14-310.)

Accordingly, the legislative history of section 21465 is consistent with
what we have concluded is the statute's reasonable interpretation -- that
is, that it applies only to traffic signs and was never intended to do more.
Plaintiffs' signs cannot be characterized as traffic signs subject to
prohibition under section 21465. They did not purport to be traffic signs.
They did not imitate or resemble traffic signs. The signs did not attempt to
direct the movement of traffic or hide from view any traffic sign. The CHP,
relying only on sections 21465 and 21467, cannot prevent plaintiffs from
displaying the signs.

Plaintiffs have presented an actual controversy concerning whether the CHP
may interfere with plaintiffs' activities under the authority of sections
21465 and 21467. We conclude the CHP may not do so. Therefore, plaintiffs
are entitled to declaratory relief on that issue. (See Code Civ. Proc., §
1060 [authorizing declaratory relief when actual controversy presented].)
Since sections 21465 and 21467 do not apply, we need not consider whether
their application would violate plaintiffs' free speech rights. {Slip Opn.
Page 13}


II Injunctive Relief
Although the CHP purported to act pursuant to sections 21465 and 21467,
which do not provide authority for the actions taken, injunctive relief is
not available if it would have the effect of preventing the execution of a
public statute by officers of the law for the public benefit. (Code Civ.
Proc., § 526, subd. (b)(4).) Under the facts of this case, an injunction
could have the effect of preventing the CHP from executing its beneficial
function of directing traffic pursuant to section 2410.

"Members of the California Highway Patrol are authorized to direct traffic
according to law, and, in the event of a fire or other emergency, or to
expedite traffic or insure safety, may direct traffic as conditions may
require notwithstanding the provisions of this code." (§ 2410.) Traffic
includes pedestrians. (§ 620.) The record shows that the CHP acted to
terminate plaintiffs' activities on freeway overpasses only when those
activities were causing freeway congestion. Thus, under the authority of
section 2410 allowing the CHP to "direct traffic . . . to expedite traffic .
. . as conditions may require . . . ," the actions taken by the CHP
conformed to their statutory authority.

During the testimony of a CHP officer, the effect of section 2410 as broad
authority to direct traffic was raised but not explored. Its application to
this case was not considered. The statute was mentioned in a footnote in
plaintiffs' opening {Slip Opn. Page 14} brief, but only to say that the CHP
did not claim this section as justification for its actions. Finally, in
response to the request for supplemental briefing in which this court asked
whether the CHP has inherent authority to exclude communicative activities
from freeway overpasses, the CHP cited its authority under section 2410.
Consideration of section 2410 goes to the question of whether plaintiffs are
entitled to the injunctive relief requested. We conclude that an injunction
on CHP interference with plaintiffs' activities might have the effect of
preventing the execution of a public statute for public benefit. Therefore,
plaintiffs are not entitled to injunctive relief. (Code Civ. Proc., § 526,
subd. (b)(4).)

On appeal, plaintiffs assert that application of sections 21465 and 21467 to
their signs violates their free speech rights because it has the effect of
prohibiting their signs while other signs (billboards and other advertising)
containing commercial speech are allowed. Our conclusion that sections 21465
and 21467 are inapplicable makes it unnecessary to reach this contention.
Plaintiffs also contend, however, that the CHP has unconstitutionally broad
discretion in determining whether to interfere in plaintiffs' activities
because, in plaintiffs' words, the CHP "can offer no statute that purports
to be a reasonable time, place, manner restriction that is narrowly tailored
. . . ."

Understandably, plaintiffs did not contend in the trial court that section
2410 violates their free speech rights as applied in this case. The CHP did
not assert section 2410 as {Slip Opn. Page 15} authority for its actions.
The focus of this action has been, as noted in the statement of decision,
whether the CHP's intended enforcement of sections 21465 and 21467 will
prevent plaintiffs from displaying their signs. However, the CHP's knowledge
of the scope of its authority has no bearing on that authority.

Under the narrow facts of this case, we conclude that the CHP's actions,
authorized by section 2410, did not violate plaintiffs' free speech rights.
The government may place restrictions on free speech on streets to permit
free flow of traffic, which is the main purpose of a street, even if an
incidental purpose of providing a forum for free speech is served.
"Regulations of the use of a public forum that ensure the safety and
convenience of the people are not 'inconsistent with civil liberties but . .
. [are] one of the means of safeguarding the good order upon which [civil
liberties] ultimately depend.' Cox v. New Hampshire , 312 U.S. 569, 574, 85
L.Ed. 1049, 61 S.Ct. 762 (1941)." ( Thomas v. Chicago Park Dist. (2002) 534
U.S. 316, 323 [151 L.Ed.2d 783, 791].) "[T]he exercise of First Amendment
rights may be regulated where such exercise will unduly interfere with the
normal use of the public property by other members of the public with an
equal right of access to it." ( Food Employees v. Logan Valley Plaza (1968)
391 U.S. 308, 320-321 [20 L.Ed.2d 603, 613].) Time, place, and manner
restrictions on free speech "'must not be based on the content of the
message, must be narrowly tailored to serve a significant governmental
interest, and must leave open ample {Slip Opn. Page 16} alternatives for
communication.' Forsyth County v. Nationalist Movement , 505 U.S. 123, 130,
120 L.Ed.2d 101, 112 S.Ct. 2395 (1992); see also Clark v. Community for
Creative Non-Violence , 468 U.S. 288, 293, 82 L.Ed.2d 221, 104 S.Ct. 3065
(1984)." ( Thomas v. Chicago Park Dist., supra, 534 U.S. at p. 323, fn. 3.)
The state has a strong interest in ensuring the free flow of traffic on
roadways. ( Madsen v. Women's Health Center (1994) 512 U.S. 753, 768 [129
L.Ed.2d 593, 601]; Planned Parenthood Shasta-Diablo, Inc. v. Williams (1995)
10 Cal.4th 1009 , 1020-1023.)

Here, the CHP's actions were not based on the content of the message, served
the significant governmental interest of allowing traffic to flow freely on
the freeways, and left open ample alternatives for plaintiffs to communicate
their message in other forums. Although the parties differ dramatically on
whether, and under what circumstances, a freeway overpass is a public forum,
it is unnecessary to decide that issue in this case because, even assuming
freeway overpasses are public forums, the CHP's actions, authorized by
section 2410, did not violate plaintiffs' free speech rights. (See Faustin
v. City, County of Denver, Colorado (10th Cir. 2001) 268 F.3d 942, 949-950
[sidewalk of highway overpass is a traditional public forum].) "A
fundamental and longstanding principle of judicial restraint requires that
courts avoid reaching constitutional questions in advance of the necessity
of deciding them." ( Lyng v. N.W. Indian Cemetery Prot. Asso. (1988) 485
U.S. 439, 445 [99 L.Ed.2d 534, 544]; see also Santa Clara County Local {Slip
Opn. Page 17} Transportation Authority v. Guardino (1995) 11 Cal.4th 220 ,
230-231.)

The Legislature has never spoken concerning the issue of expressive
activities on freeway overpasses. If it is the terrifying problem the
dissent suggests, perhaps the Legislature should deal with the issue. A
specific and narrowly tailored statute would establish California's public
policy in this regard and give the courts a point of reference for
application of constitutional principles.

The CHP discontinued plaintiffs' activities on the freeway overpasses, under
the facts of this case, only when the activities were causing traffic
congestion on the freeways below. Therefore, section 2410, on its face,
allowed the CHP to direct plaintiffs to move on "to expedite traffic . . .
."

Given this conclusion, it is unnecessary and would be premature for us to
determine whether the CHP can prevent the plaintiffs from demonstrating when
the activities are not causing traffic congestion. For example, we need not
determine whether the CHP can prevent plaintiffs' activities on freeway
overpasses at any time to "insure safety . . ." (§ 2410) or for other
reasons. While it may be argued that allowing the CHP to prevent plaintiffs'
activities on freeway overpasses based solely on safety concerns may
delegate discretion to enforcing officers that is unconstitutionally broad
(see Cox v. Louisiana (1965) 379 U.S. 536, 557-558 [13 L.Ed.2d 471, 486]
[only limited discretion may be vested in enforcing authorities]), the
question is not presented here. {Slip Opn. Page 18}

Because we conclude the CHP's actions were authorized by section 2410 and
did not violate plaintiffs' free speech rights, plaintiffs are not entitled
to injunctive relief. Accordingly, the portion of the trial court's judgment
denying injunctive relief must be affirmed.


III Declaratory Relief
Beyond the declaration that the CHP may not use sections 21465 and 21467 as
authority to interfere with plaintiffs' activities, this action does not
present a proper case for declaratory relief. The issue of what the CHP can
and cannot do in situations not substantially similar to the facts presented
here cannot be the subject of a declaration concerning plaintiffs' rights
because we can only speculate concerning what the conditions of future
encounters between plaintiffs and the CHP will be.

"Any person . . . who desires a declaration of his or her rights or duties
with respect to another . . . , may, in cases of actual controversy relating
to the legal rights and duties of the respective parties, bring an original
action . . . for a declaration of his or her rights and duties . . . ."
(Code Civ. Proc., § 1060.)

A plaintiff may bring an action for declaratory relief before an actual
invasion of rights has occurred. ( Burke v. City etc. of San Francisco
(1968) 258 Cal.App.2d 32 , 34.) However, the action must be based on an
actual controversy with known parameters. If the parameters are as yet
unknown, the {Slip Opn. Page 19} controversy is not yet ripe for declaratory
relief. ( Pacific Legal Foundation v. California Coastal Com. (1982) 33
Cal.3d 158 , 170-171.)

"The ripeness requirement, a branch of the doctrine of justiciability,
prevents courts from issuing purely advisory opinions. [Citation.] It is
rooted in the fundamental concept that the proper role of the judiciary does
not extend to the resolution of abstract differences of legal opinion. It is
in part designed to regulate the workload of courts by preventing judicial
consideration of lawsuits that seek only to obtain general guidance, rather
than to resolve specific legal disputes. However, the ripeness doctrine is
primarily bottomed on the recognition that judicial decisionmaking is best
conducted in the context of an actual set of facts so that the issues will
be framed with sufficient definiteness to enable the court to make a decree
finally disposing of the controversy. On the other hand, the requirement
should not prevent courts from resolving concrete disputes if the
consequence of a deferred decision will be lingering uncertainty in the law,
especially when there is widespread public interest in the answer to a
particular legal question. [Citations.]

". . . 'The controversy must be definite and concrete, touching the legal
relations of parties having adverse legal interests. [Citation.] It must be
a real and substantial controversy admitting of specific relief through a
decree of a conclusive character, as distinguished from an opinion advising
what the law would be upon a hypothetical state of facts.' {Slip Opn. Page
20}

. . . 'The "actual controversy" referred to in [Code of Civil Procedure
section 1060] is one which admits of definitive and conclusive relief by
judgment within the field of judicial administration, as distinguished from
an advisory opinion upon a particular or hypothetical state of facts. The
judgment must decree, not suggest, what the parties may or may not do.'
[Citation.] . . . 'The principle that courts will not entertain an action
which is not founded on an actual controversy is a tenet of common law
jurisprudence, the precise content of which is difficult to define and hard
to apply. . . . A controversy is "ripe" when it has reached, but has not
passed, the point that the facts have sufficiently congealed to permit an
intelligent and useful decision to be made.' [Citation.]" ( Pacific Legal
Foundation v. California Coastal Com., supra, 33 Cal.3d at pp. 170-171.)

The focus of this litigation has been the applicability of sections 21465
and 21467 and the constitutionality of the CHP's enforcement of those
statutes. The parties did not litigate the CHP's enforcement of other
statutes or the constitutionality of such enforcement. While it is necessary
for us to consider, under the current facts, the applicability of section
2410 because plaintiffs seek injunctive relief and we cannot grant
injunctive relief if it would have the effect of preventing enforcement of a
public statute for the public's benefit (see Code Civ. Proc., § 526, subd.
(b)(4)), we are not in a position to know the parameters of future relations
between plaintiffs and the CHP. Indeed, those relations may change simply
because {Slip Opn. Page 21} the CHP is now on notice that sections 21465 and
21467 do not apply to plaintiffs' activities.

The issue of whether plaintiffs may hold their signs on freeway overpasses
under circumstances not presented by the facts of this case is not ripe.
Many variables, such as traffic congestion, safety, and the exercise of the
CHP's statutory authority, may combine to change whether the CHP may
appropriately interfere with plaintiffs' activities in any given situation.
Furthermore, CHP interference could be presented that, unlike here, would
violate plaintiffs' free speech rights. If such a situation were presented,
the issue of whether the freeway overpass is a public forum would also be
ripe. We cannot, however, make a declaration at this point that will be
applicable under all scenarios. Since the controversy, beyond the
application of the Vehicle Code sign statutes as discussed above, does not
admit of definitive and conclusive relief by judgment, as distinguished from
an advisory opinion upon hypothetical facts, there is no actual controversy
pursuant to Code of Civil Procedure section 1060, and plaintiffs are not
entitled to declaratory relief beyond the declaration of rights already
discussed.


CONCLUSION
The judgment is modified to grant plaintiffs declaratory relief in that the
CHP may not rely on Vehicle Code sections 21465 and 21467 as authority to
interfere with plaintiffs' activities while plaintiffs are standing on the
sidewalks of freeway overpasses and holding non-traffic signs visible to the
{Slip Opn. Page 22} motorists below on the freeway. As modified, the
judgment is affirmed. Plaintiffs shall recover their costs on appeal.

Raye, J., concurred. {Slip Opn. Page 1}

RAYE, J., Concurring:

I fully concur in Justice Nicholson's well-reasoned analysis and conclusion
that the California Highway Patrol (CHP) may not rely on Vehicle Code
sections 21465 and 21467 as authority to interfere with plaintiffs'
activities under the facts presented, but acted properly in dispersing
plaintiffs under Vehicle Code section 2410.

I write separately to emphasize my disagreement with several aspects of my
dissenting colleague's views. I disagree with his cataclysmic vision of the
havoc that will be wreaked when citizens are permitted to exercise their
First Amendment rights on public property within sight of a freeway. I do
not share his view of police power: that we presume police authority to act
absent a constitutional prohibition to the contrary. And while I agree with
the majority that we need not reach the issue in this case, I am not
persuaded by the dissent's public forum analysis.

The dissent evokes images of freeways strewn with human carcasses and
wrecked automobiles --- the detritus of high speed collisions between
drivers distracted by activity on freeway overpasses -- overpasses teeming
with demonstrators competing to display their messages to the motoring
public. There is no basis for such wild imaginings. While the parties may
have wished for a more expansive holding, our task is to decide the case
before us. This is a case about four specific overpasses populated by a
given number of protestors at particular points in time. Not all overpasses
are the same. An overpass crossing {Slip Opn. Page 2} Highway 99 in Turlock
may be an effective protest platform, particularly if the target audience
happens to be local citizens, but sign-waving protestors stationed on such
an overpass would have a negligible impact on sparse freeway traffic. The
same cannot be said of the urban overpasses at issue in this case. The
dissent lumps them all together and insists that a single rule should apply
to all.

The dissent's conclusion in this regard seems premised on the unsupportable
notion that signs on freeway overpasses inevitably disrupt traffic on the
underlying freeway and on largely irrelevant principles of real property
law. After acknowledging decisions by the United States Supreme Court that
public streets are "traditional" and "quintessential" public forums, the
dissent makes the imminently reasonable observation that freeways are not
the type of streets the Supreme Court had in mind. Their attributes --
limited access and high-speed traffic, among others -- make them unsuitable
for service as public forums. Up to this point the dissent's reasoning is
largely unassailable. What follows is not. The dissent then concludes,
"Because freeways and government property within a freeway right-of-way,
such as freeway overpasses , are not public forums," restrictions on speech
are permissible if reasonable. (Italics added.) This segue (or, more
appropriately, giant leap) from freeways to freeway overpasses is
unaccompanied by analysis of overpasses or any explanation as to why a
freeway overpass -- a public street that crosses over a freeway -- should be
treated the same as the freeway it crosses. {Slip Opn. Page 3}

Only later does the dissent attempt to explain, and the explanation is
totally unsatisfactory. Instead of the well-reasoned analysis of the
function and characteristics of freeways supporting the dissent's conclusion
that freeways are unsuitable public forums, the dissent offers a primer on
property law: "The owner of land in fee has the right to the surface and to
everything permanently situated beneath or above it." (Civ. Code, § 829.)
The dissent is correct on this point of law but the point is meaningless.
What matters is not who owns the overpass but the characteristics that make
it an unsuitable public forum. No amount of legal sleight of hand can alter
the simple fact that a freeway overpass is not a freeway.

The dissenting opinion's analysis of the CHP's authority is similarly
flawed. Accusing the majority of placing the statutory cart before the
constitutional horse, the dissent cites Perry Ed. Assn. v. Perry Local Ed.
Assn. (1983) 460 U.S. 37, 44 [74 L.Ed.2d 794, 804] for the proposition that
the right of access will differ depending on the character of the property
at issue. From this simple undisputed principle, the dissent concludes:
"Accordingly, the initial, and pivotal, issue that must be resolved is
whether freeways and freeway overpasses are public forum properties." The
dissent thus insists that we must address the constitutional issue before we
address the statutory question of whether the CHP is even empowered to act.
I fear the dissent not only has the horse and cart inverted, but the {Slip
Opn. Page 4} cart is also detached from the horse. The CHP's authority to
act in the first instance is unrelated to the status of property as a public
forum.

It is true that a lower standard is required of restrictions imposed on
property that is not a public forum. "The state" has great authority to act
in such an instance, but the CHP has not been ceded all of the state's
powers. It is simply an agent of government with limited, statutorily
defined authority to act. We have been pointed to no statute restricting the
access of pedestrians to freeway overpasses. Thus, before delving into
difficult constitutional questions, it is fair to first ask what gives the
CHP the authority to act as it did. Had plaintiffs' demonstrators been
removed from the freeway by employees of the Board of Fabric Care, we would
inquire into that board's authority to act. We cannot simply presume the CHP
has such authority.

Finally, I concur with my colleague that we are not compelled to reach the
question of whether a freeway overpass is a public forum. Our opinion makes
clear that even assuming public forum rules apply, the facts in this case
warrant the action taken by the CHP. The dissent complains that our opinion
leaves prospective protestors to puzzle over the scope of the CHP's
authority. That result, however, is inevitable unless we conclude, as does
the dissent, that an overpass is not a public forum. We are neither a
legislature nor an enforcement agency. Our task is to review restraints
enacted by the Legislature and standards of enforcement promulgated by
administrative agencies. {Slip Opn. Page 5} Where, as here, the authority to
act is premised on an expansive statute such as Vehicle Code section 2410,
which empowers action on a case-by-case basis, our review must necessarily
be limited to the facts of the particular case. The parties are not left
bereft of guidance; similar facts will produce similar results. {Slip Opn.
Page 1}

SCOTLAND, P. J., Dissenting:

As will soon become apparent, I strongly disagree with the majority's
analysis--an analysis that should be terrifying to any person who drives on
a freeway.

As the parties and the trial court recognized, this case poses a relatively
straightforward question. Is a freeway overpass a public forum that
demonstrators can use to communicate their message to freeway motorists
passing below?

In declining to decide this question, the majority takes a wrong turn that
in effect invites groups or individuals to demonstrate on freeway
overpasses, leaving them and the California Highway Patrol with the burden
of litigating over the use of freeway overpasses case by case, overpass by
overpass, throughout the state--with the outcome depending on how much
traffic congestion that a particular demonstration causes. In other words,
the parties will be obligated to hit the road again, through future
litigation, in an effort to obtain judicial answers to the questions they
pose.

And the majority's decision will burden freeway motorists with the danger
that its approach will create. After all, the purpose of demonstrating on a
freeway overpass is to cause freeway motorists to take their eyes and
attention off of driving and to focus, instead, on the signs and photographs
displayed by the demonstrators--and even to cause motorists to remain
distracted as they ponder, rejoice, or fume about the message while driving
on. Nevertheless, the majority suggests {Slip Opn. Page 2} that authorities
must wait and see whether traffic congestion and dangerous conditions
actually develop.

I refuse to travel down this road since it is far too dangerous and because
the majority's analysis is inconsistent with the law and common sense. Not
only is the use of freeway overpasses for expressive activity inconsistent
with the purpose served by the overpasses, it takes no imagination to
realize that such activity poses a grave threat to the safety and health of
freeway drivers. Negotiating the freeways today is difficult enough due to
the speeds reached by most drivers and the lack of skills displayed by many
of them. With motorists distracted by demonstrators on the overpasses above,
accidents are bound to result, some of them fatal. Thus, you could say the
majority opinion is dead wrong.

This will be no small problem. As the record in this case shows, plaintiffs
began using freeway overpasses because "it was a cheap and efficient
economical way to get [their] message to as many people as possible." It is
inevitable that other individuals or organizations will follow suit because,
as I have noted, the majority essentially invites them to protest on freeway
overpasses while the authorities wait to see what effect the protests have
on traffic congestion and safety.

I shudder to think of the consequences that will prevail. For example, white
supremacist skinheads may be able to use the 12th Avenue overpass on Highway
99 to protest against the Dr. Martin Luther King, Jr. holiday; just think
how worked up and distracted this will get drivers who are speeding down the
{Slip Opn. Page 3} freeways, and how unsafe this will be for those on the
road. Why not dueling overpasses--Bomb Saddam advocates on the Sunrise
Boulevard overpass and No War in Iraq protestors on the Mather Field Road
overpass on Highway 50? The possibilities are endless. The danger to
motorists is clear.

Let there be no doubt that my views on the issue are not influenced by the
nature of the protest in this case. Whatever the message, allowing it to be
delivered by demonstrators on a freeway overpass to traffic below presents
too great a danger of physical harm to motorists.

As I will explain in detail to follow, freeway overpasses are not public
forums in which to engage in expression protected by the First Amendment.
Hence, the California Highway Patrol can prohibit the expression of ideas on
freeway overpasses provided, as occurred in this case, that its actions are
reasonable and not intended to suppress any particular point of view. If I
am wrong and the law allows freeway overpasses to be used by demonstrators
as public forums, then to borrow some words from Charles Dickens, "the law
is a ass--a idiot." (Dickens, Oliver Twist (1838) ch. 51 (Bumble).)


I
I begin by demonstrating why the majority's end run around the public forum
question is wrong.

As noted earlier, the positions of the parties in this case are relatively
straightforward. Plaintiffs want to use freeway overpasses to communicate to
motorists passing underneath the overpasses. Plaintiffs contend that freeway
overpasses are public {Slip Opn. Page 4} forums, and that they have a
constitutional right to use them for communicative purposes subject only to
"a reasonable time, place, manner restriction narrowly drawn to meet a
significant state interest." On past occasions, defendant California Highway
Patrol (CHP) has prevented plaintiffs from using freeway overpasses to
demonstrate to freeway drivers. On those occasions, plaintiffs were trying
to demonstrate during periods of rush hour traffic. However, plaintiffs did
not, either by pleading or by testimony, limit their request for relief to
such periods.

The CHP, on the other hand, asserts that freeways and freeway overpasses are
not public forums. At trial, the CHP presented clear and forceful testimony
that it enforces a blanket policy of prohibiting demonstrations from freeway
overpasses whenever and wherever they occur, regardless of the content of
the message. The witnesses explained that such demonstrations inevitably
have an adverse effect on the safe and efficient movement of freeway
traffic. Thus, it is clear that, unless restrained by judicial decision, the
CHP will not permit plaintiffs to demonstrate from freeway overpasses at any
time.

In light of this continuing dispute, plaintiffs brought this action for (1)
an injunction prohibiting the CHP "from denying plaintiffs' constitutional
right to express their views in a traditional public forum," and (2) "[f]or
a declaration by the court of the rights and duties of plaintiff[s] herein."
During preparation for trial, opposing counsel "had conversations over the
last several months about trying to get as clean and clear a constitutional
outcome from this proceeding as possible." {Slip Opn. Page 5} To that end,
the parties endeavored to eliminate extraneous and undisputed issues by
stipulation.

The parties recognize that the initial, and pivotal, issue is whether
freeways and freeway overpasses are public forum properties. If so,
plaintiffs' conduct cannot be prohibited, but may be regulated by a specific
and narrowly drawn time, place, and manner regulation. ( Perry Ed. Assn. v.
Perry Local Ed. Assn (1983) 460 U.S. 37, 45 [74 L.Ed.2d 794, 804].) fn. 1 In
that respect, plaintiffs asked the CHP for statutory authority relevant to
such conduct. The CHP provided a list of provisions, including Vehicle Code
sections 2410, 21465, and 21467. (Further section references are to the
Vehicle Code unless otherwise specified.) Sections 21465 and 21467 were
identified as the primary provisions of significance.

The majority, seizing upon the trial discussions involving statutory
provisions, seeks to avoid resolving the constitutional questions presented
by focusing upon statutory issues. Such an approach does not work. By
adopting it, the majority fails to resolve the parties' controversy and
inevitably requires them to renew their litigative efforts. {Slip Opn. Page
6}

The majority first construes sections 21465 and 21467 in a manner that
excludes plaintiffs' conduct. Having done so, the majority concludes that
plaintiffs are entitled to declaratory relief stating the CHP cannot rely
upon those sections to exclude plaintiffs from freeway overpasses.

The majority's approach places the statutory cart before the constitutional
horse. As the United States Supreme Court said in Perry Ed. Assn. v. Perry
Local Ed. Assn., supra , 460 U.S. 37 [74 L.Ed.2d 794]: "The existence of a
right of access to public property and the standard by which limitations
upon such a right must be evaluated differ depending on the character of the
property at issue." ( Id . at p. 44 [74 L.Ed.2d at p. 804].) Accordingly,
the initial, and pivotal, issue that must be resolved is whether freeways
and freeway overpasses are public forum properties.

In order to show cause for relief, plaintiffs must establish that they have
an affirmative right to demonstrate to freeway traffic from freeway
overpasses. Plaintiffs cannot establish an affirmative right simply by
showing that some particular statute does not apply to them. Rather, the
issue necessarily turns on whether freeways and freeway overpasses are
public forums. (See Arkansas Educ. TV v. Forbes (1998) 523 U.S. 666, 677-680
[140 L.Ed.2d 875, 886-889].) If freeways and freeway overpasses are not
public forums, plaintiffs have no constitutional right to demonstrate from
them and may be prohibited from doing so provided that their exclusion is
not based on their viewpoint and is reasonable in light of the purposes for
which the property is maintained. ( Id. at p. 682 [140 L.Ed.2d at pp.
889-890].) {Slip Opn. Page 7} In such case, the existence of a specific
statutory exclusion is not critical. (See, e.g., Arkansas Educ. TV v.
Forbes, supra , at p. 682-683 [140 L.Ed.2d at pp. 889-890] [exclusion based
upon "journalistic discretion"].) If, on the other hand, freeways and
freeway overpasses are public forums, plaintiffs may not be entirely
prohibited from demonstrating, and may be regulated only by specific and
narrowly drawn statutes or regulations. ( Perry Ed. Assn. v. Perry Local Ed.
Assn., supra , 460 U.S. at p. 45 [74 L.Ed.2d at p. 804].) In such case,
sections 21465 and 21467, which are broad, blanket prohibitions, cannot
suffice. In either case, an interpretation of those sections is not
determinative of the issues presented.

In any event, the majority presupposes that the removal authority granted by
section 21467 is necessarily limited to the prohibitions of section 21465.
However, section 21467 authorizes summary removal of "[e]very prohibited
sign, signal, device, or light." Section 21465 is not the sole source of
prohibition against signs, signals, devices or lights. (See, e.g., Bus. &
Prof. Code, §§ 5403, 5405.3.) A statutory provision cannot be read in
isolation, but must be construed together with other laws on the same
subject matter. ( California Real Estate Loans, Inc. v. Wallace (1993) 18
Cal.App.4th 1575 , 1582.)

Thus, to warrant relief precluding the CHP from exercising authority under
section 21467, it is not enough to conclude that section 21465 does not
apply to plaintiff's conduct; rather, it must be demonstrated that
plaintiffs have a right to engage in the challenged activity. In the
circumstances of this case, {Slip Opn. Page 8} that can be addressed only by
resolving whether or not freeways and freeway overpasses are public forums.

The majority next proceeds to a discussion of section 2410 and concludes
that this provision permits the CHP to prohibit plaintiffs' activities, at
least in some circumstances. Based on this conclusion, the majority further
concludes that it is unnecessary to determine whether freeways and freeway
overpasses are public forums. Again, the approach does not work.

First, as I have pointed out, the discussion places the statutory cart
before the constitutional horse. We cannot know the standard by which to
evaluate limitations upon plaintiffs' expressive efforts until we have first
determined the character of the property at issue. ( Perry Ed. Assn. v.
Perry Local Ed. Assn., supra , 460 U.S. at p. 44 [74 L.Ed.2d at p. 804].)

Second, the majority's decision fails to answer numerous questions that are
essential to the parties' understanding of their rights and
responsibilities. Thus, the opinion states that the CHP may prohibit
plaintiffs' demonstrations in order to ensure the free flow of traffic or to
avoid traffic congestion, but leaves unanswered such questions as: Can
section 2410 be applied as a preventative measure to avoid traffic
congestion before it occurs? Since the CHP witnesses testified that
expressive conduct on the freeways inevitably impedes the free flow of
traffic, can the CHP exclude demonstrations in their entirety, thus
effectively closing the forum if it was otherwise open? If traffic
congestion is prerequisite to the application of section 2410, by what
criteria is traffic congestion to be {Slip Opn. Page 9} determined? Is it
enough that traffic is congested or must plaintiffs' conduct contribute to
it? Whose opinion is determinative? What recourse do plaintiffs have if they
disagree?

Precision is the touchstone of First Amendment jurisprudence; but the
majority opinion effectively leaves the parties where they were before this
litigation, without guidance to enable them to avoid future controversy, and
future litigation.

Third, the majority's approach imposes unwarranted limitations upon the
issues presented by the parties. It is true that when the CHP interfered
with plaintiffs' activities in the past, plaintiffs were demonstrating
during rush hours. However, plaintiffs did not suggest that they would limit
their desire to demonstrate to rush hours. Rather, they plan to demonstrate
from freeway overpasses "if we've essentially a clear legal route to do so."

It is also true that, on prior occasions, officers were sent to the scene as
the result of citizen complaints. But at trial, the officers made it clear
that they did not exclude plaintiffs from the overpasses as the result of
individualized consideration, but simply applied a blanket rule of
exclusion. Officer Peart, who was involved in the prior incidents, testified
that he would exclude demonstrators from overpasses whenever they come to
his attention. Sergeant Faria, who was also involved in the prior incidents,
concurred. Neither officer attempted to describe the traffic conditions at
the time of the prior encounters, and neither officer tried to justify their
actions by reference to particular traffic conditions. {Slip Opn. Page 10}

Plaintiffs were not cited or arrested as a result of the prior incidents.
They do not seek to avoid prosecution, fine, or other onus arising from
those events. They do not seek recompense from the CHP based upon those
events. In the trial court, evidence related to the prior events was
presented solely to establish that an actual legal controversy has arisen
between the parties. The legal controversy is whether plaintiffs can be
prohibited entirely from demonstrating to freeway traffic from freeway
overpasses. The majority's singular focus on the prior incidents does little
to resolve the actual controversy that exists.

Finally, by its decision the majority assumes the role of factfinder. Since
the parties were interested in resolving their dispute to avoid future
controversy, they did not actually litigate the question whether, in past
incidents, particular circumstances existed that would warrant restriction
on plaintiff's conduct, if such conduct were otherwise permissible. The
trial court did not decide that question. However, if plaintiffs have a
right to demonstrate from freeway overpasses subject to restriction under
some circumstances, the question whether those circumstances exist is in
large part factual. Since the parties did not litigate that issue, and the
trial court did not decide it, this court is not in a position to determine
whether, in the prior incidents, circumstances warranted application of
section 2410.

The most the majority could properly conclude is plaintiffs may be
prohibited from demonstrating from freeway overpasses when the circumstances
described in section 2410 are present. But the negative pregnant included in
such a declaration--that plaintiffs {Slip Opn. Page 11} are otherwise
entitled to demonstrate--is not a conclusion that we can properly reach
without specifically addressing the question whether freeway overpasses are
public forums.

An appellate court cannot adjudicate through the mechanism of a negative
pregnant. Rather, a decision of an appellate court must be supported by a
written statement of reasons. ( Amwest Surety Ins. Co. v. Wilson (1995) 11
Cal.4th 1243 , 1267.) And decisions "are not authority for propositions not
considered." ( McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d
33 , 38.) This is particularly true where the appellate court specifically
declines to address an issue. ( Estate of Baird (1924) 193 Cal. 225, 239;
Estate of Hall (1908) 154 Cal. 527, 531.)

Thus, while a casual reading of the majority opinion might suggest that the
plaintiffs must be permitted to demonstrate from freeway overpasses at some
times, such an unconsidered implication is not binding on the parties (
Pacific Estates, Inc. v. Superior Court (1993) 13 Cal.App.4th 1561 , 1576),
or the trial court ( People v. Shuey (1975) 13 Cal.3d 835 , 841), and cannot
serve as precedent for purposes of stare decisis ( People v. Superior Court
(Williams) (1992) 8 Cal.App.4th 688 , 703).

The only appropriate conclusion that can be drawn from the majority opinion
is the CHP may be able to continue to prohibit plaintiffs from
demonstrating, so long as it does not purport to rely upon sections 21465
and 21467 in doing so. If plaintiffs desire a judicial determination whether
they have a right to demonstrate in at least some circumstances, they will
be obliged to commence new litigation. {Slip Opn. Page 12}

The majority notes the general rule, founded in the principle of judicial
restraint, that we will avoid deciding constitutional questions unless doing
so is strictly necessary to resolution of the case before us. The rule is
well established. ( Santa Clara County Local Transportation Authority v.
Guardino (1995) 11 Cal.4th 220 , 230-231.) But it is equally well
established that the rule cannot be applied rigidly where First Amendment
interests are at stake and lengthy, piecemeal litigation, that may not fully
vindicate those interests, must be avoided. ( Baggett v. Bullitt (1964) 377
U.S. 360, 378-379 [12 L.Ed.2d 377, 389]; People v. Fogelson (1978) 21 Cal.3d
158 , 163.) Moreover, when a constitutional question is squarely presented
in a justiciable controversy, it becomes our responsibility to resolve it.
(See Heckler v. Mathews (1984) 465 U.S. 728, 739-740 [79 L.Ed.2d 646, 657];
Times Film Corp. v. Chicago (1961) 365 U.S. 43, 44-46 [5 L.Ed.2d 403, 405].)

The CHP has made it clear that, unless it is advised it may not do so, it
will preclude plaintiffs from demonstrating from freeway overpasses at any
time and under any circumstances. A justiciable controversy has been
presented by the parties that requires our determination, through a public
forum analysis, whether plaintiffs have a constitutional right to
demonstrate from freeway overpasses. (See Public Utilities Com. v. United
States (1958) 355 U.S. 534, 540 [2 L.Ed.2d 470, 475].) We cannot fully and
properly resolve the controversy presented without first resolving this
question. {Slip Opn. Page 13}

Because I have been unable to convince the majority to address the pivotal
constitutional question presented in this litigation, I set forth my own
views of the matter.


II
As the parties recognize, the degree to which the government can restrict a
person from using public property to express the person's views depends on
the character of the property. ( Perry Ed. Assn. v. Perry Local Ed. Assn .,
supra , 460 U.S. at p. 44 [74 L.Ed.2d at p. 804].) Therefore, they agree
that the important first step in considering the issue tendered in this case
is a "forum analysis," although they predictably harbor differing
perceptions in that regard. fn. 2

For purposes of a forum analysis, public property may be classified into
three broad categories. ( Perry Ed. Assn. v. {Slip Opn. Page 14} Perry Local
Ed. Assn . , supra, 460 U.S. at pp. 45-46 [74 L.Ed.2d at pp. 804-805].)

The first category includes places that are quintessential public forums,
i.e., "which '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 between citizens, and discussing public questions.'
[Citation.]" ( Perry Ed. Assn. v. Perry Local Ed. Assn., supra, 460 U.S. at
p. 45 [74 L.Ed.2d at p. 804].) "In places which by long tradition or by
government fiat have been devoted to assembly and debate, the rights of the
State to limit expressive activity are sharply circumscribed." ( Ibid .) The
government may enforce content-neutral time, place, and manner regulations
that are narrowly tailored to serve a significant government interest and
that leave open ample alternative channels of communication. ( Ibid .) The
government also may enforce a content-based exclusion if it is necessary to
serve a compelling state interest and it is narrowly drawn to serve that
interest. ( Ibid .; accord, Krishna Society v. Lee (1992) 505 U.S. 672, 678
[120 L.Ed.2d 541, 550].)

The second category of public property is that which is not a traditional
public forum but which the government has opened for use by the public as a
place for expressive activity. ( Perry Ed. Assn. v. Perry Local Ed. Assn.,
supra , 460 U.S. at p. 45 [74 L.Ed.2d at p. 805].) To be a public forum by
"designation" ( ibid .), it is not enough that the property be open to some
forms of communication, or even that it be maintained for the purpose of
communicative activity. ( Id . at pp. 46-47 [74 L.Ed.2d at pp. 805 {Slip
Opn. Page 15} -806]; U.S. Postal Service v. Greenburgh Civic Assns. (1981)
453 U.S. 114, 129, fn. 6 [69 L.Ed.2d 517, 530, fn. 6].) Rather, it must
appear that the government has intentionally opened the property for
expressive activity by the general public. ( Arkansas Educ. TV v. Forbes,
supra, 523 U.S. at p. 677 [140 L.Ed.2d at p. 886].) While the government is
not required to retain the open character of such property indefinitely, as
long as it does so it is bound by the same rules that apply to traditional
public forums, i.e., "[r]easonable time, place, and manner regulations are
permissible, and a content-based prohibition must be narrowly drawn to
effectuate a compelling state interest." ( Perry Ed. Assn. v. Perry Local
Ed. Assn., supra , 460 U.S. at p. 46 [74 L.Ed.2d at p. 805]; accord, Krishna
Society v. Lee, supra, 505 U.S. at p. 678 [120 L.Ed.2d at p. 550].)

The third category of public property is that which is neither by tradition
nor by designation an open forum for general public communication. ( Perry
Ed. Assn. v. Perry Local Ed. Assn., supra , 460 U.S. at p. 46 [74 L.Ed.2d at
p. 805].) "[T]he First Amendment does not guarantee access to property
simply because it is owned or controlled by the government." ( U.S. Postal
Service v. Greenburgh Civic Assns., supra , 453 U.S. at p. 129 [69 L.Ed.2d
at p. 530].) With respect to public property that is not an open forum for
public communication, the government may enforce time, place, and manner
regulations, and also "may reserve the forum for its intended purposes,
communicative or otherwise, as long as the regulation on speech is
reasonable and not an effort to suppress expression merely because public
officials oppose the speaker's {Slip Opn. Page 16} view." ( Perry Ed. Assn.
v. Perry Local Ed. Assn., supra, 460 U.S. at p. 46 [74 L.Ed.2d at p. 805];
accord, Krishna Society v. Lee, supra, 505 U.S. at pp. 678-679 [120 L.Ed.2d
at p. 550].) fn. 3

Here, the public properties at issue are freeway overpasses upon which
plaintiffs desire to direct their demonstrations to freeway mo