Motion for Partial Judgment as a Matter of Law:
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
In all of its voluminous filings, the City has completely failed to even deny, much less refute certain facts that should allow this Court to rule that the Fayetteville sign ordinance has been unconstitutionally applied.
Moreover, certain other provisions of the Ordinance, on their face, make
the Ordinance unconstitutional as drafted.
Thus, I now motion the Court to rule that:
1. The Fayetteville sign
ordinance is unconstitutional, as applied AND on its face, and,
2. As such, the City of
Fayetteville is enjoined from enforcing this Ordinance.
The support for this motion is contained in a brief filed
contemporaneously with this motion titled “Brief in Support of Motion for
Partial Judgment as a Matter of Law”.
Respectfully
submitted,
JOHN
S. LA TOUR
BY: ________________________
John S. La Tour
THE LA TOUR ACCOUNTING FIRM
JOHN
S. LA TOUR
112 Center Street, Suite 560
Fayetteville, AR 72701
(479) 443-7878
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 JUDGMENT AS A MATTER OF LAW
INTRODUCTION
AND BACKGROUND
In this brief and the motion it supports, I am seeking a Judgment as a
Matter of Law on one of the issues raised in my complaint; namely that the
Fayetteville Sign Ordinance is unconstitutional.
In my complaint I raised this issue because the specific Ordinance
provisions that were used by the City to convict me of criminal activity were
being unconstitutionally applied. However,
after further investigation, it seems to be an inevitable conclusion that the
Ordinance is unconstitutional on its face as well.
Thus, I am asking this Court, as a matter of Law, to declare the
Ordinance unconstitutional and to thereby enjoin the City from enforcing the
unconstitutional Ordinance.
Other issues raised in my complaint do not qualify for Judgment as a matter of Law because my arguments could not be sustained if we assume all of the facts to be as the Defendants claim. These factual issues I shall reserve for the jury if this most honorable and just Court should see fit to grant my request and prayer for my day in court.
1. Content Regulation:
1. In all of its voluminous
filings and purported arguments, the City has never once denied, much less
refuted, that my sign functions exactly like the numerous time and temperature
signs located inside the Fayetteville city limits.
Instead the City argues the following:
a. The
Arkansas Supreme Court has upheld certain provisions of the Ordinance as facially constitutional.
b. The
individual officials named in my complaint are somehow immune from civil
liability.
c. My
entire case should be dismissed based on the ill argued doctrines of res
judicata and issue preclusion.
d. Time
and temperature signs are not really signs.
e. The
Ordinance “exempts” time and temperature signs from the other Ordinance
provisions that prohibit flashing, blinking, or animation or signs.
2. I shall consider each of
the forgoing in seriatim.
A. Even if the Arkansas Courts have upheld certain provisions of the Ordinance as constitutional on their face, the Ordinance can still be applied in an unconstitutional manner. This is precisely what has occurred.
As
I have argued, ad nauseam, the City has applied certain constitutional
provisions of the Ordinance in an unconstitutional manner.
For example, the City allows time and temperature signs to change their
messages at will but, at the same time, the City restricts my sign from changing
its message at will. Because both
types of signs function in exactly the same manner, the restrictions on my sign
amount to nothing less than content regulation or regulations on the basis of
content.
Thus,
even if certain provisions of the Ordinance have been held to be facially
constitutional, other provisions can be unconstitutional on their face or as
they are applied; additionally, the facially constitutional provisions can be
unconstitutionally applied.
Accordingly,
even if we assume this one of the City’s arguments is true, this argument
would not preclude this Court from finding that the Ordinance is
unconstitutional.
B. Since ordinances or other forms of statutory law do not
qualify for immunity from constitutional scrutiny, this argument would not
preclude this Court from finding that the Ordinance is unconstitutional.
Moreover, even if, which I specifically deny, the City officials are
immune, such immunity would not save the Ordinance itself.
C. The City has argued extensively that the doctrine of
res judicata or issue preclusion should exclude me from the
courthouse door. I specifically
deny that this doctrine applies in this case because the prior legal proceedings
were criminal and this is a civil suit. However,
even if res judicata could preclude this suit based on my prior state
criminal proceedings, I, along with every other citizen who resides in the City
of Fayetteville, would have standing to bring a suit challenging the
constitutionality of the Ordinance.
The
United States Supreme Court has established a three prong test for establishing
standing.
First
the plaintiff must have suffered an injury in fact, an invasion of a legally
protected interest which is (a) concrete and particularized, See, Warth
v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405
U.S. 727, 740-741, n. 16 (1972) and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical’, Los Angeles v. Lyons, 461
U.S. 95, 102 (1983).
Second,
there must be a causal connection between the injury and the conduct complained
of; the injury has to be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party not
before the court, Simon v. Eastern K. Welfare Rights Organization, 426
U.S. 26,41-42 (1976).
Third,
it must be likely as opposed to merely speculative that the injury will be
redressed by a favorable decision. Id., at 38, 43.
In
applying this three prong test, I note the following:
1. The City has breached my constitutional guarantees of free
speech and equal protection. These
breaches were accomplished by the City ordering me to remove my sign altogether,
garnering a criminal conviction based on the unconstitutional application of the
Ordinance, and issuing an active warrant for my arrest all because I had the
nerve to exercise my constitutional rights.
In
exhibits filed with previously filed briefs, I present strong and conclusive
evidence of these activities.
But
even if none of the above assertions are true, the City would still be breaching
the civil rights of all of its citizens by regulating signs within the City
based on their content. Thus, I,
along with every other Fayetteville citizen have an “injury in fact”.
The
legally protected rights of free speech and equal protection are breeched by
such unconstitutional content regulation. Furthermore,
the rights to free speech and equal protection are such firmly established
constitutional doctrines, they could hardly be described as anything but
“concrete and particularized”.
Moreover,
the injury inflicted by these breeches of rights
are actual and NOT conjectural. Every
citizen of Fayetteville is having his or her rights violated by this
unconstitutional application of the Ordinance.
2. Our rights as Fayetteville citizens are being breached
precisely because of the City’s unconstitutional actions. Thus, there is a “casual connection” between the breech
of rights and the City’s conduct. Indeed,
but for the conduct of the City and its officials, our rights would not be
violated.
Additionally,
the breech of constitutional rights has not occurred because of some third
party. The breech is directly
traceable to the City and other Defendants named in my complaint.
3. It is entirely possible and likely that the breech of these
civil rights will be altogether stopped if this Court grants the declaratory and
injunctive relief which I am seeking. Conversely,
if the Court chooses to do otherwise, the City will continue to breech the civil
rights of its citizens. Surely the
Court intends otherwise.
Thus,
even if I was precluded from bringing my case to this Court under the doctrines
of res judicata or issues preclusion, I would still enjoy the benefits of
standing based on this three prong test.
D. The City has argued that time and temperature signs are not
really signs. If this were true,
the City’s very own exhaustive definition of what a sign is would be false
thus rendering the Ordinance vague and void of meaning. Thus the Ordinance would still be unconstitutional on a
vagueness theory.
Moreover,
the Ordinance currently may very well fail a vagueness test in that it nowhere
defines the term “attraction device”.
E. The City has argued, falsely in my opinion and according to
UDO Sect. 158.08, that time and temperature signs are exempted from the
Ordinance provisions that prohibit flashing, blinking, or animation.
This argument directly contradicts the UDO itself, but if the argument
was true the Ordinance would still be unconstitutional in that it would allow
exempted signs to flash but not non-exempted signs.
The only rational basis for such a distinction would have to be the
content of the exempted signs. Again
the City would find itself regulating signs on the basis of the sign’s
content.
Thus
even if it were true the exempted signs could flash, the Ordinance would still
be unconstitutional.
2. Unconstitutional on its
Face:
1. In numerous Supreme Court cases the Court has expressed that a sign ordinance may not regulate on the basis of content NOR may it regulate noncommercial speech to a greater extent than it regulates commercial speech. See, Metro Media v. City of San Diego, 453 U.S. 490 (1981); 44 Liquormart v.Rhode Island, 517 U.S. 484, 485-486; Cincinnati v. Discovery Networks, Inc., 570 U.S. 410, p.424.
As demonstrated in prior filings and supra, the Fayetteville Ordinance does regulate on the basis of content but it also regulates noncommercial speech to a greater extent than commercial speech.
2. Under specific UDO provisions, it is illegal for a Fayetteville resident to keep a noncommercial “Elect Smith” sign in his yard more than 72 hours past an election. At the same time, a commercial real estate sign proposing a commercial transaction can remain in place indefinitely. Thus, noncommercial speech is regulated to a greater extent than noncommercial speech.
Moreover, the U.S. Supreme Court has ruled that reasonably sized personal signs that express political or other noncommercial opinions are one of the “purest forms of free expression” and as such cannot be restricted. SEE, City of Ladue v. Gillio, 512 U.S. 43 (1994). Therefore, reasonably sized “Elect Smith” signs, under the rule, can remain on display for as long as the owner desires.
Thus,
alas, the Ordinance is not only being applied in an unconstitutional manner but
it is ALSO unconstitutional on its face.
In all of its filings, the City has never overcome the facts that its Ordinance is unconstitutional as it is applied AND on its face. For the reasons set out above, I respectfully pray and ask this Court to grant my motion for partial judgment as a matter of law. Without such a ruling, the citizens of Fayetteville, Arkansas will find no relief from this illegal ordinance and illegal official activity of the City.
Respectfully submitted,
BY:_____________________
John
S. La Tour
THE LA
TOUR ACCOUNTING FIRM
April
10, 2002
JOHN
S. LA TOUR
112 Center Street, Suite 560
Fayetteville, AR 72701
(479) 443-7878