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.
)
______________________________________
REPLY
TO DEFENDANTS RESPONSE IN
OPPOSITION TO PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
INTRODUCTION
1. In their opposition to my
motion for partial summary judgment, the Defendants maintain that nothing has
changed and, thus, this motion should be denied.
In the major and minor premises of its syllogism, the City overlooks one
crucial detail; the complaint has been amended to challenge the
constitutionality of the Fayetteville sign
ordinance (“ordinance”) on its face.
2.
Amazingly, the City fails to introduce evidence or cases of any kind to
indicate that a genuine issue of material fact exists for this issue.
This is because there are no cases or other evidence to support the
City’s most unconstitutional ordinance.
POSITION
AND ARGUMENTS
3. On September 25, 2002 this Court granted me permission to file an amended complaint challenging the ordinance on its face. My prior Motion for Summary Judgment was dismissed because, at that point, I had only complained of the application of the ordinance. In order to prove the application is unconstitutional, the finder of fact will have to rule on several factual issues. However, on the issue of facial constitutionality, no such factual rulings are necessary since no factual issues exists.
4. Indeed, a simple reading of the ordinance by this Court will readily reveal the facially unconstitutional provisions of the ordinance. No discovery, therefore, is necessary to rule on the ordinance’s facial constitutionality.
5. The City has admitted that UDO Chapter 174 (formally Chapter 158) is the Fayetteville sign ordinance. Nowhere in this entire chapter are the Fayetteville citizens protected from the unbridled discretion of local officials. Moreover, both of the safeguard provisions defined by the Courts are noticeably absent and the ordinance at UDO §158.21(H) allows the local official to require whatever information he desires. Thus, the conclusion is inescapable; the ordinance contains illegal prior restraint.
6. Moreover, a simple reading of the ordinance will reveal several provisions which require the local official to refer to the content of the sign in order to apply the ordinance. Thus, the ordinance is content based.
7. No genuine issue of material fact exists. Indeed, under these unconstitutional provisions of the ordinance, no reasonable jury could find, by a preponderance of the evidence, the ordinance to be constitutional. The Court itself must make this ruling by a simple comparison of the ordinance to the rules of law established by the cases I cited in my brief. Thus, this Motion for Partial Summary Judgment is appropriate and should be granted.
CONCLUSION
8. The people of Fayetteville have toiled long enough under the illegal provisions of this ordinance. No genuine issue of material fact exists and this Court is perfectly justified in granting summary judgment on the narrow issue of the ordinance’s facial constitutionality. Other issues of the ordinance’s application and new issues likely to emerge from discovery, will have to be decided by a jury, but not this issue. Summary Judgment is appropriate here and should be granted.
9. The tired arguments of the City, that conveniently overlook my second amended complaint, should not produce any further delay in this matter. Everyday, Fayetteville citizens are intimidated into silence. I refuse, respectfully, to join those ranks.
Respectfully submitted,
JOHN S. LA TOUR
BY: _____________________
John S. La Tour, Pro Se
October 22, 2002
JOHN S. LA TOUR
Certified Public Accountant
112 Center Street, Suite 560
Fayetteville, AR 72701
(479) 443-7878