IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
JOHN S. LA TOUR,
)
Plaintiff,
)
v.
)
)
CITY OF FAYETTEVILLE, ARKANSAS
) File Number:
BRANDT WARWICK
) 02-5001
CASEY JONES
)
KIT WILLIAMS
)
BOB ESTES
)
MIKE MCKIMMEY
)
Defendants, in both their individual and official
)
Capacities.
)
_________________________________________
Brief in Support of
Motion for Partial Summary Judgment on
The Issue of the Facial Constitutionality of the Fayetteville, Arkansas
Sign Ordinance, UDO Chapter 174 (Formally Ch. 158)
INTRODUCTION
1.
In order to rule on the constitutional nature of this ordinance as
drafted, no genuine issue of material fact exists.
Certainly, a simple reading of the ordinance will, by itself, expose the
facial unconstitutional provisions that produce content-based regulations and an
illegal prior restraint. I motion
for this summary judgment under the authority of the Federal Rules of Civil
Procedure Rule 56.
POSITION
AND ARGUMENTS
ILLEGAL PRIOR RESTRAINT
2.
In a long line of cases, the Courts have held that anytime a citizen is
required to obtain official permission to exercise a constitutional right, a
prior restraint exists.
If the law does not specify criteria upon which the permission must be granted or otherwise leaves the citizen at the “unbridled discretion of the official”, the Courts will strike the law as an illegal prior restraint. Even though prior restraints are not illegal per se, they do bear a heavy burden of being presumed unconstitutional. FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990); Thomas v. Chicago Park Dist., 534 U.S. 316 (2002)
Douglas
v. Brownell, 88
F.3d 1511 (1996); Steele v. City of Beidmii, 257
F.3d 902 (2001); Jakes,
Ltd. Inc. v. City of Coates,
284 F.3d 884 (2002); North
Olmsted Chamber of Commerce v. North Olmsted,
86 F. Supp.2d 755 (N.D. Ohio, 2000).
3.
In order to give guidance to law makers, the Courts have created and
consistently applied at least two safeguards that must be included in any prior
restraint statute to correct the otherwise unbridled discretion of local
officials.
4.
First, the statute must require local officials to make permit decisions
within a definite and brief time
period. Second, the statute has to
guarantee an independent, speedy, judicial review if permission is denied, and
the status quo must be maintained during the judicial review.
SEE, FW/PBS, Inc. v.
Dallas, 493 U.S. 215
(1990).
5.
Read in its entirety, the Fayetteville sign ordinance completely fails to
provide either of these two safeguards. In
fact, UDO §158.21 sets out the information required for a successful sign
permit applicant. UDO §158.21(H)
mandates that the applicant must provide “Such other information as the
building inspector shall require …”.
6.
It would be difficult to imagine a more perfect form of unbridled
discretion. UDO §158.21(H) makes
it clear that the building inspector can require whatever information he
desires, not limited by anything.
7.
Not only does the ordinance fail to provide the required safeguards, it
goes to great extremes to ensure that the local official can exclude any speech
or speaker he desires by requiring “such other information”.
Such a scheme cannot be tolerated under the Constitution and must be
struck.
CONTENT REGULATION
8. Reading the ordinance, one comes across provision after provision that requires the local official to read or refer to the content of a sign in order to apply the ordinance. For instance, a sign permit is not required if the sign states only the name and profession of a business §158.08(A); a permit is similarly not required if the sign simply displays the name of the contractor on a building project §158.08(B); likewise, a permit is not required if the sign memorializes a building’s erection date §158.08(E).
9.
However, if a sign of identical color, size, and location displays my
personal religious opinion or statement, it will require a permit.
This is true even though it would be difficult to imagine how one of
these signs would be more esthetically pleasing or less distracting to passing
motorists than the other. Thus, the
content-based sign ordinance scheme undermines the stated objectives of the
scheme in the first place.
10. Moreover, if a directional sign points the way to a nearby church, civic, or nonprofit organization, the sign can be located off premises §158.37. However, a sign of identical size, shape, color, and location directing people to the nearest McDonalds restaurant would be illegal under the scheme. Thus, the signs are treated differently contingent only on the sign’s content.
11.
The ordinance’s permit exemption scheme at §158.08 is perhaps the most
constitutionally invalid part of the entire intolerable ordinance.
First, it is almost purely content-based legislation.
The Supreme Court has held that a restriction on speech is content-based
when the message conveyed determines whether the speech is subject to the
restriction. See, City of Cincinnati v. Discovery Network, Inc.,,
113 S. Ct. 1505, 1516-17, 123 L.Ed.2d 99 (1993).
In this section of the ordinance scheme, the content of the sign
determines in part or in whole how big the sign can be or how long it can stay
up. Furthermore, many of the types
of signs delineated in this section are not defined in the definitions section.
Therefore, it is unknown what is acceptable speech for each type of sign.
12.
Additionally, even if the Fayetteville government’s interests were
compelling, which I specifically deny, the permit provisions of the ordinance
would still fail constitutional muster because they are not narrowly tailored.
For example, the ordinance permit scheme allows many exemptions to
favored speakers, all based on sign content; construction signs, real estate
signs, fuel price signs, etc. SEE GENERALLY UDO §158.08. These
exemptions themselves undermine the City’s stated goals of promoting safety
and aesthetics.
13. Another particularly interesting example of the ordinance’s content-regulation scheme is the manner in which the ordinance deals with political speech.
14. The City may attempt to argue it is giving political speech preferential treatment by not requiring a permit for political signs, but a careful reading of these sections reveals otherwise. The ordinance, at §158.08(H) states,
“Election campaign signs. Political signs are permitted to be placed on private property in any district subject to the following conditions….”
This
section then goes on to give limits on the political signs.
What is interesting about this section is that it is entitled “Election
Campaign Signs,” but it regulates all “political signs.”
The City, by mixing its words has cleverly devised a way to suppress
disfavored political speech while making it look like it is giving preference to
this kind of speech. A simple example will help illustrate. A citizen, without a permit, may very well erect a sign
advocating the election of a certain political official.
However, he may not erect a sign calling for the recall of the same
official without a permit. The ordinance only exempts signs related to specific
elections from the permit requirements. This
is intolerable content-based regulation. City of Cincinnati v. Discovery
Network, Inc..
15.
When the political speech provisions of §158.08(H) are combined with the
illegal prior restraint provisions of the ordinance scheme, it is easy to see
how political speech can be suppressed. Indeed,
a sign displaying a political statement criticizing the current City
administration would require a permit since it would not be tied to a specific
election campaign. The suppression
of political speech could be completed by the building inspector stalling for
time by requiring “such other information” until the immediacy of the
criticism has past.
16.
Furthermore, in the same section, the City exempts itself from its own
regulation. §158.08(F) reads:
“Traffic signs, etc. Traffic or other
municipal signs, legal notices, railroad crossing signs, danger, and such
temporary, emergency, or nonadvertising [sic] signs as may be approved by the
city council.” Emphasis supplied.
17.
Here, the City will not subject itself to the same regulations it demands
of its citizens. The City’s rationales for this ordinance are safety
and aesthetics. It is difficult to
imagine how government signs are somehow less distracting or more pleasing to
the eye than the sign of a private individual or business. It is interesting again to note that the City hides its own
exemption in the middle of a subsection sounding so innocent.
Traffic signs, of course, increase safety, but the government-sanctioned
speech allowed exception in the same subsection may have nothing to do with
safety but everything to do with agenda promotion.
18. Another
interesting ordinance section is §158.36.
Here, the City specifically regulates content by outlawing certain shapes
and colors. It even includes a list
of illegal words: “STOP, LOOK, DRIVE-IN, DANGER.”
Thus a sign reading: “Danger: The Mayor is Up for Re-election” or
“Stop City Council from Passing Amendment X” is never allowed in
Fayetteville. This kind of
regulation is patently illegal. SEE,
Cincinnati at IV.
Indeed, the City actually attempts to regulate the specific words that
can and cannot be used. If this is
not content regulation, the concept is meaningless.
19.
Although these are only a few examples of the facial content regulations
of the ordinance, the permit scheme is replete with many others.
The courts, in another long line of cases, have ruled such content
regulations are patently illegal. SEE Central Hudson v. Public Service
Commission, 447 U.S. 557
(1980); Metromedia v. City of San Diego, 453 U.S. 490 (1981); Ward v.
Rock Against Racism, 491 U.S. 781 (1989); City of Cincinnati v. Discovery
Network, 507 U.S. 410 (1993); Whitton v. City of Gladstone, 54
F.3d 1400 (Eighth Cir. 1995); Nightclubs,
Inc. v. City of Paducah, 202 F.3d 884 (2000); Forsyth County v.
Nationalist Movement, 505 U.S.
123 (1992); North Olmsted Chamber of Commerce v. North Olmsted , 86 F.
Supp.2d 755 (N.D. Ohio 2000); King Enterprises v. Thomas Township,
Case Number 01-10242-BC (E.D.Mich. 2002); 2002);
Sugarman v. Village of Chester, et al, 01
Civ. 8667 (WCC) (S.D.N.Y. 2002); Savago
v. Village of New Paltz, 1:02-CV-87 (N.D.N.Y. 2002).
20. Clearly, the ordinance regulates on the basis of content both on its face and, as I have previously argued, ad nauseam , in its application.
21.
Once again, my electronic message sign publishes my political and
religious opinions, but the City refuses to allow the message on my sign to
change in an unrestricted manner. This
is the case even though the City, under official policy, does allow other
noncommercial message signs that only state the time and temperature to change
their message in an unrestricted manner.
SUMMARY
JUDGMENT STANDARD OF REVIEW
22.
Summary judgment is proper when the court is satisfied "that there
is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” FED. R.CIV.P. 56(c).
23.
A party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying
those portions of `the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any,' which it believes
demonstrates the absence of a genuine issue of material fact. Celotex Corp.
v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986) (citing FED.R.CIV.P.
56(c)). A fact is "material" only if its resolution will affect the
outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
24.
In most civil cases involving summary judgment, the court must decide
"whether reasonable jurors could find by a preponderance of the evidence
that the plaintiff is entitled to a verdict." Anderson, 477 U.S. at
252, 106 S. Ct. 2505. The judge's sole function is to determine whether there is
a genuine factual issue for trial, which does not exist unless "there is
sufficient evidence favoring the nonmoving party for a jury to
25.
In sum, proper summary judgment analysis entails "the threshold
inquiry of determining whether there is the need for a trial — whether, in
other words, there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of
either party." Id. at 250, 106 S.Ct. 2505.
26.
As stated above, on the issue of whether the ordinance is facially
constitutional, there are no genuine factual issues to be decided.
The City has admitted in its pleading that the Fayetteville sign
ordinance is found at Unified
Development Ordinance, Title
15, Chapter 174, formally chapter 158. All
that is necessary to determine the constitutional validity of the ordinance is a
simple reading of this chapter.
The unconstitutional provisions are obvious on their faces.
27.
Although discovery might well reveal other genuine issues of material
facts that will need to be decided by a jury, the facial constitutionality of
ordinance is not one of them.
CONCLUSION
28. It is my earnest prayer and request that this Court will see fit and just to grant my motion for partial summary judgment. By so doing, this Court will be defending the U.S. Constitution, a document that many others have defended and paid for with their very lives. My prayer is that we will not belittle their sacrifice by even our slightest indifference.
29.
WHEREFORE, premises considered,
I ask and pray:
1.
That this Court enter summary judgment on the constitutionality of the
ordinance on its face in favor of the Plaintiff; and,
2.
For all other relief which this Court considers correct and just.
Respectfully
submitted,
JOHN S. LA TOUR
BY: _________________________
John S. La Tour, Pro Se
October
7, 2002
JOHN
S. LA TOUR
Certified Public Accountant
112 Center Street, Suite 560
Fayetteville, AR
72701
(479)443-7878