1 OFFICE OF THE CITY ATTORNEY GARY VERBURG, City Attorney 2 State Bar No. 005515 200 West Washington, Suite 1300 3 Phoenix, Arizona 85003-1611 Telephone (602) 262-6761 4 Email: [email protected]5 James H. Hays, #010275 Assistant City Attorney 6 Attorneys for Defendants 7 IN THE SUPERJOR COURT OF THE STATE OF ARJZONA 8 9 10 16 . IN AND FOR THE COUNTY OF MARJCOPA ALAN KORWIN and TRAINMEAZ, LLC, Plaintiffs, vs. DEBBIE COTTON and CITY OF PHOENIX, ARJZONA, a municipal corporation and political subdivision of the State of Arizona, Defendants. No. CV2011-009838 ANSWER OF DEFENDANTS (Assigned to the Honorable John Buttrick) 17 Defendants the City of Phoenix, Arizona and Debbie Cotton of the Office of the 18 Public Transit Department, City of Phoenix, Arizona, in her official capacity only 19 (hereinafter collectively the "City"), by and through their undersigned attorney, appear and 20 as and for their Answer to Plaintiff s Complaint, admit, deny and allege as follows: 21 ADMISSIONS AND DENIALS 22
Transcript
1 OFFICE OF THE CITY ATTORNEY GARY VERBURG, City Attorney
2 State Bar No. 005515 200 West Washington, Suite 1300
DEBBIE COTTON and CITY OF PHOENIX, ARJZONA, a municipal corporation and political subdivision of the State of Arizona,
Defendants.
No. CV2011-009838
ANSWER OF DEFENDANTS
(Assigned to the Honorable John Buttrick)
17 Defendants the City of Phoenix, Arizona and Debbie Cotton of the Office of the
18 Public Transit Department, City of Phoenix, Arizona, in her official capacity only
19 (hereinafter collectively the "City"), by and through their undersigned attorney, appear and
20 as and for their Answer to Plaintiffs Complaint, admit, deny and allege as follows:
21 ADMISSIONS AND DENIALS
22
1 1. Answering paragraph 1, the City is without knowledge or information
2 sufficient to form a belief as to the truth or falsity of the allegation that PlaintiffKorwin is a
3 citizen of the United States and is a resident of the State of Arizona and therefore denies the
4 allegation. By way of further answer, the City admits only that PlaintiffKorwin is listed as
5 "manager" for the entity "TrainMeAZ, LLC" on the Arizona Corporation Commission
6 website and is without knowledge or information sufficient to form a belief as to the truth or
7 falsity of the allegation, if one is in fact being made, that Plaintiff Korwin is a "manager" of
8 Plaintiff TrainMeAZ, LLC in any other context, and therefore denies the allegation.
9 2. Answering paragraph 2, the first sentence is, upon information and belief,
10 admitted. Answering the second sentence of paragraph 2, the City is without knowledge or
information sufficient to form a belief as to the truth or falsity of the allegation or as to
whether Plaintiff is even a "business," in the usual sense of the word, and therefore denies
the allegation.
3. Paragraph 3 is admitted.
4. Paragraph 4 is admitted.
16 5. Paragraph 5 is admitted.
17 6. Paragraph 6 is admitted.
18 7. Paragraph 7 is admitted.
19 8. Answering paragraph 8, the City is without knowledge or information
20 sufficient to form a belief as to the truth or falsity of the allegation and therefore denies it
21 and, by way of further answer, incorporates the City's answer to paragraph number 1 as
22 though fully set forth herein.
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1 9. Answering paragraph 9, first sentence, the City admits that Plaintiff
2 TrainMeAZ, LLC is an Arizona limited liability company organized under the provisions of
3 A.R.S. Title 29, Ch. 4, but is without knowledge or information sufficient to form a belief as
4 to whether Plaintiff TrainMeAZ, LLC is operated for profit and therefore denies that
5 allegation. Answering paragraph 9, second sentence, the City is without knowledge or
6 information sufficient to form a belief as to how PlaintiffTrainMeAZ, LLC's costs are
7 financed, as to whether this Plaintiff even has costs that require financing, as to whether this
8 Plaintiffhas contributing sponsors who actually pay this Plaintiff money, or as to whether
9 there exist any "others" who may pay this Plaintiff money, for any purpose, and therefore
10 denies these allegations .
10. Answering paragraph 10, first sentence, the City is without knowledge or
information sufficient to form a belief as to whether Plaintiff TrainMeAZ, LLC operates a
website, and therefore denies the allegation, and, by way of further answer, alleges that any
website that may exist with this Plaintiffs name on it otherwise speaks for itself.
11. Answering paragraph 11 , the City is without knowledge or infonnation
16 sufficient to form a belief as to whether Plaintiff TrainMeAZ, LLC produces a "Where-to-
17 Shoot Guide" Gun Map, or whether this plaintiff intends to sell said map, if it in fact is
18 produced by this plaintiff, for profit, and therefore denies these allegations.
19 12. Answering paragraph 12, the City is without knowledge or infonnation
20 sufficient to form a belief as to the truth or falsity of the allegations in this paragraph and
21 therefore denies them. By way of further answer, the City alleges that "public relations" is
22 not an advertising campaign, even assuming that either exists for this plaintiff.
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1 13. Answering paragraph 13, the City admits only that it owns transit shelters,
2 benches and buses, upon which advertising is permitted, and the balance of the paragraph is
3 denied as an inaccurate statement of the relationship between the public, the City, and CBS
4 Outdoor and Clear Channel Outdoor.
5 14. Answering paragraph 14, first sentence, the City admits only that it has Transit
6 Advertising Standards, that the Standards challenged in this lawsuit have been changed and
7 are no longer in effect, that both the current standards and the previous version are clear and
8 unambiguous and have been, and as to the current standards continue to be, applied
9 consistently, fairly and constitutionally to those advertisements submitted to the City for
10 placement on transit shelters, benches and buses. Answering paragraph 14, second sentence,
the allegation is denied.
15. Answering paragraph 15, the allegation is admitted to the extent that it alleges
the wording of the "Transit Advertising Standards" dated December 8, 2009. By way of
further answer, it is alleged that these Transit Advertising Standards are no longer in effect.
16. Answering paragraph 16, it is admitted that an Advertiser Agreement exists
16 between PlaintiffKorwin and CBS that bears the date October 5, 2010, and it is alleged that
17 the agreement otherwise speaks for itself.
18 17. Answering paragraph 17, the City denies that the description in this paragraph
19 accurately and completely describes the entire poster alleged in this paragraph and alleges
20 that the poster otherwise speaks for itself.
21 18. Paragraph 18 is denied.
22
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1 19. Answering paragraph 19, the City is without knowledge or information
2 sufficient to form a belief as to the truth or falsity of the allegation that "CBS" told Plaintiff
3 Korwin exactly what is alleged in this paragraph on October 19 and that Plaintiff Korwin
4 then said exactly what is alleged in return, and therefore denies the allegation.
5 20. Paragraph 20 is admitted.
6 21. Answering paragraph 21, the City admits that the conversation took place,
7 denies that the paragraph fully and accurately sets forth the conversation, and alleges that
8 there is a tape recording of this conversation and that that recording speaks for itself.
9 22. Answering paragraph 22, the City admits that the conversation took place,
1 0 denies that the paragraph fully and accurately sets forth the conversation, alleges that there is
~ >-> o 11 a tape recording of this conversation and that that recording speaks for itself, and denies that ~
0) 0-C::M!....- \0
0 0 1-I.l "7 t::; ~ t: § 12 any assertions ofPlaintiffKorwin, without more, make the matters asserted true. ~ c~""' ><a z~ d g ~ 2 13 23 . Answering paragraph 23, the City admits that the conversation took place, ~~~-~gJi3J~ t:3 ~ ~ ~ 14 denies that the paragraph fully and accurately sets forth the conversation, alleges that there is
2j~;:::1§ tf ~ ~ 5: 15 a tape recording of this conversation and that that recording speaks for itself, and denies, to 0
16 the extent that the paragraph makes this assertion, that the advertising standards are in any
17 way vague or require any additional standards, guidelines or explanation in order to be
18 understood and applied fairly, consistently and constitutionally.
19 24. Answering paragraph 24, first sentence, the City is without knowledge or
20 infonnation sufficient to form a belief as to the truth or falsity of the allegation and therefore
21 denies it. Answering paragraph 24, second sentence, the allegation is denied.
22 25. Paragraph 25 is admitted.
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·,
1 26. Paragraph 26 is admitted with the qualification that the City is without
2 knowledge or information sufficient to form a belief as to the precise identity of those
3 alleged to be "several TrainMeAZ contributing sponsors" and therefore denies that portion of
4 the paragraph.
5 27. Answering paragraph 27, it is admitted only that Defendant Debbie Cotton
6 stated that the Transit Department may review advertising proposed to be placed at transit
7 shelters and that advertisements are reviewed on a case-by-case basis. The allegation in this
8 paragraph that Defendant Debbie Cotton could not provide details about the process or
9 whether the Transit Department regularly reviews advertisements is denied.
10 28. Answering paragraph 28, the allegation that representatives of the City could
not "articulate meaningful standards for determining whether an advertisement proposes a
commercial transaction" is denied, and the allegation as to public service announcement is
admitted.
29. Paragraph 29 is admitted.
30. Answering paragraph 30, the City admits that the conversation took place,
16 denies that the paragraph fully and accurately sets forth the conversation, alleges that there is
17 a tape recording of one side of this conversation, which speaks for itself, and denies the
18 entire allegation as a misstatement of the expressed position of Defendant Cotton and, to the
19 extent that the paragraph makes this assertion, denies that the advertising standards are in
20 any way vague or require any additional standards, guidelines or explanation in order to be
21 understood and applied fairly, consistently and constitutionally.
22
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1 31. Answering paragraph 31, the paragraph is denied as the product of a false
2 premise- that the City's Transit Advertising Standards are in need of "guidelines" in order
3 to be utilized -when in fact they are and have been clear and understandable as written, and
4 are and have been applied fairly, consistently, and constitutionally.
5 32. Paragraph is 32 is denied.
6 33. Paragraph is 33 is denied.
7 34. Paragraph is 34 is denied.
8 35. Answering paragraph 35, the City admits only that Defendant City of Phoenix
9 is a municipal corporation organized and existing under and by virtue of the laws of the State
10 of Arizona, and that Defendant Debbie Cotton is an employee of Defendant City of Phoenix
and was at all times material to the Complaint herein acting as an employee of Defendant
City of Phoenix and in her official capacity as Director of the Transit Department of
Defendant City of Phoenix.
36. Paragraph 36 is answered by incorporating the previous answers given.
37. Answering paragraph 37, the City admits that the United States Constitution
16 contains a First Amendment and that the Arizona Constitution contains a provision at Art. 2,
17 § 6 relating to freedom of speech and press, both of which otherwise speak for themselves, as
18 written and as construed by the state and federal courts of the United States of America.
19 38. Answering paragraph 3 8, the allegation is denied as an incorrect statement of
20 the law as it applies to the City's Transit Advertising Standards.
21
22
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I •.
1 39. Answering paragraph 39, the allegation is denied as an incorrect statement of
2 the law as it applies in this case, and by way of further answer it is alleged that the case cited
3 otherwise speaks for itself.
4 40. Paragraph 40 is denied.
5 41. Paragraph 41 is denied.
6 42. Paragraph 42 is denied.
7 43 . Paragraph 43 is answered by incorporating the previous answers given.
8 44. Answering paragraph 44, the City admits only that the United States
9 Constitution and the Arizona Constitution contain rights to due process of law, and denies by
10 way of further answer that anything that Defendants have done in the premises has in any
E:; » o 11 way violated any of the rights referenced in this paragraph. ~
0 0 -C:<">... - \0
0 gI-ll "7 1:-< 5 § 12 45. Answering paragraph 45, the City admits only that the United States <t: .f' C/) ~ :>-< u z·~ E3 g~ § 13 Constitution and the Arizona Constitution contain rights to equal protection of the law, and
~~~~ 5 g: ~ ~ 14 denies by way of further answer that anything that Defendants have done in the premises has
ej~~~ [E ti ~ iE 15 in any way violated any of the rights referenced in this paragraph. 0
16 46. Paragraph 46 is answered by incorporating the City's answer herein to
17 paragraph 15 of the Complaint.
18 47. Answering paragraph 4 7, the first sentence is admitted with the qualification
19 that the Transit Advertising Standards, both current and previous, speak for themselves, and
20 by way of further answer it is alleged that no definition of this readily-understandable phrase
21 is necessary in order for the standards challenged in this lawsuit to be fairly, consistently and
22 constitutionally applied. The balance of the paragraph is denied.
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1 48. Paragraph 48 is answered by incorporating the previous answers given.
2 49. Answering paragraph 49, the City admits only that there are no "guidelines" to
3 enforce the "propose a commercial purpose" standard in the Transit Advertising Standards,
4 and by way of further answer alleges that no such "guidelines" are necessary in order for the
5 standards challenged in this lawsuit to be fairly, consistently and constitutionally applied.
6 The balance of the paragraph is denied.
7 50. Paragraph 50 is denied.
8 51. Answering the "Introduction" to the Complaint, first sentence, the City alleges
9 that the Complaint speaks for itself. Answering the second sentence, the City is without
10 knowledge or information sufficient to form a belief as to the truth or falsity of the allegation
that Plaintiff Korwin has a lawful business or that Plaintiff Korwin "simply" seeks to
advertise it, and therefore denies the allegations. Answering the third sentence, the
allegations contained therein are denied. Answering the fourth sentence, the City alleges that
the Transit Advertising Standards, current and previous, speak for themselves and do not
impose unconstitutional restrictions on noncommercial or commercial speech, and are
16 neither vague nor arbitrarily and unequally applied. The last sentence is denied.
17 52. Any allegation of Plaintiffs' Complaint not specifically admitted or qualified
18 herein is denied.
19 AFFIRMATIVE ALLEGATIONS
20 53. The City's current Transit Advertising Standards were issued in March of
21 2011.
22
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. . . . ~-.
1 54. Plaintiffs' facial challenge to the Transit Advertising Standards dated
2 December 8, 2009 is moot and must be dismissed.
3 55 . Plaintiffs' request to enjoin the enforcement of the Transit Advertising
4 Standards dated December 8, 2009 is moot and must be dismissed.
5 56. Plaintiffs' Count I fails to state a claim for relief and must be dismissed.
6 57. Plaintiffs ' Count II fails to state a claim for relief and must be dismissed.
7 58. Plaintiffs ' Count III fails to state a claim for relief and must be dismissed.
8 WHEREFORE, all defendants having appeared and fully answered the allegations of
9 the Complaint herein, Defendants pray that the Complaint be dismissed, that Plaintiffs take
10 nothing thereby, that Defendants be awarded their costs and expenses herein as allowable by
law, and for such other and further relief as the Court may deem just and proper in the
premises.
DATED this 31 st day of May, 2011.
16
17 Copy of the foregoing mailed this 31st day of May, 2011, to :
18 Clint Bolick
19 Christina M. Kohn
Attorneys
Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute 20 500 E. Coronado Rd.
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