Every once in a while, I read about a case that has nothing to do with mediation other than creativity and feel compelled to write about it. As I have noted previously, there is one thing about lawyers and/or their clients: they can be very creative. The Ninth Circuit Court of Appeals issued an opinion  in  early April 2023  (Susan Porter vs Kelly Martinez,  et. al ,Case No. 21-55149 (9th Cir. April 7, 2023)) that, while having absolutely nothing to with mediation except to encourage brainstorming and “out of the box” thinking, is worth noting.

So- spoiler alert– this blog has nothing to do with mediation other than demonstrating creativity.

On October 17, 2017, Plaintiff Susan Porter drove to Congressman Darrel Issa’s office in San Diego, California to join a protest against the Congressman’s stance on gun control. She parked along the street near a fire hydrant. When she saw the police giving out parking citations on the protestors’ parked vehicles, she decided to leave the protest and move her car. By the time she found a safe spot to park and got out of her car to return to the protest, the protest had ended. So, she returned to her car and as she drove by the protesters, she honked her horn in solidarity. (Id. at 42 and 52.)

She was given a ticket for violating California Vehicle Code Section 27001 which provides:

(a) The driver of a motor vehicle, when reasonably necessary to insure safe operation shall give audible warning with his horn.

 (b) The horn shall not otherwise be used, except as a theft alarm system.

Her case was dismissed when the ticketing officer failed to appear at trial. However, Ms. Porter contending that Section 27001 violates her First and Fourteenth Amendments of free speech, alleged that she is now afraid to honk her horn in solidarity to protestors when she drives by rallies, protests and demonstrations in San Diego out of fear of getting ticketed again. (Id. at 6-9.) Thus, she sued to “block enforcement of Section 27001 against what she calls ‘expressive honking”.” (Id. at 9.)

After the trial court granted summary judgment in favor of the State of California, plaintiff appealed. (Id. at 9-11.)

In affirming the summary judgment in favor of the State, the Ninth Circuit agreed with the parties “… that at least some of the honking prohibited by Section 27001 is expressive for First Amendment purposes. (Id. at 16.) Yet while noting that only about eight citations a year are issued for violation of this Vehicle Code section (Id. at 12), the Court concluded that the State’s interest in vehicle safety (i.e., honking only as a traffic safety measure- to warn of possible danger) overrides Plaintiff’s interest in using the horn as an expression of free speech. (Id. at 13-32.):

Accordingly, we conclude that Section 27001 “furthers an important or substantial governmental interest” that is “unrelated to the suppression of free expression.” O’Brien, 391 U.S. at 377.

…We are also persuaded that Section 27001 is narrowly tailored to further California’s interest in traffic safety. The statute encourages the use of a vehicle’s horn “when reasonably necessary to [e]nsure safe operation” and prohibits honking in all other circumstances—because, as explained above, honking when there is no hazard both dilutes the horn’s usefulness as a safety device and creates dangers of its own. To be sure, most non-warning honks do not create distractions resulting in accidents, but we discern no plausible means by which California could permit nondistracting honks while prohibiting distracting honks.  (Id. at 29-30.) 

While this case has nothing really to do with mediation, in another sense it does.   Not only does it highlight the creativity and “out of the box” thinking of the lawyers which are essential to resolving many disputes in mediation, it also highlights two sides of an issue: Is this case one of those very few that should NOT be mediated because an important public policy is involved, or it is just a “silly” case that is overtaxing and overburdening our already strained judicial system?

Could the public policy and societal issues at stake be equally advanced by an “out of the box” mediated resolution thereby saving the resources of both the trial and appellate courts? Are the issues here those of great public concern implicating social values and our constitutional rights or is this case a big to do over nothing since so few tickets for misuse of our horns are even issued?  Would it have been possible to reach a result suitable to preserving our First Amendment rights through a negotiated settlement (with perhaps a consent decree being entered by the court as part of that settlement)?

When I read cases like this- where so much time, effort and energy were put into a once in a million situation, I wonder if the parties would have been better served (as well as our Constitutional rights) using a method of Alternative Dispute Resolution instead? Did they even consider using ADR to resolve this?

In sum, no matter how “important” the case, mediation should always be considered. (But then I AM biased!)

…. Just something to think about.





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