Padou v. Dist. Of D.C.

• Citation: 998 A.2d 286
• Decision Date: 17 June 2010
• Docket Number: No. 09-CV-390.,09-CV-390.
• Parties: Abigail PADOU, et al., Appellants,v.DISTRICT OF COLUMBIA, Appellee.
• Court: Court of Appeals of Columbia District

998 A.2d 286

Abigail PADOU, et al., Appellants,v.DISTRICT OF COLUMBIA, Appellee.

No. 09-CV-390.

District of Columbia Court of Appeals.

Argued May 18, 2010.

Decided June 17, 2010.

Don Padou, with whom Abigail Padou was on the brief, pro se.

David A. Hyden, Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee.

Carl Messineo and Mara Verheyden-Hilliard, Washington, DC, filed a brief for amicus curiae the Partnership for Civil Justice Fund and the National Lawyers Guild, in support of appellants.

Before REID and KRAMER, Associate Judges, and NEBEKER, Senior Judge.

REID, Associate Judge:

Appellants, Abigail and Don Padou, acting pro se, filed an amended complaint alleging, in part, that the District violated their First Amendment constitutional rights by selectively removing their posters from utility poles or public lampposts. We are constrained to reverse the trial court's grant of summary judgment in favor of the District, and we remand this case with instructions to afford the parties an opportunity to conduct discovery, followed by further proceedings (dispositive motions or trial).

FACTUAL SUMMARY

As the record reveals, the events which led to the filing of a complaint against the District by the Padous commenced in the year 2007. In that year, according to the Padous' complaint, the District of Columbia Department of Transportation released its “streetscape” study of the Brookland area of the city. One of the recommendations of the study was that above-ground utility power lines be buried, apparently for aesthetic reasons, and to safeguard and preserve trees. Because the District allegedly did not implement the recommendation, even though funds allegedly were available for the Brookland project, the Padous and other residents “form[ed] an ad hoc community group called ‘Leave the Trees,’ ” and they planned a rally for August 23, 2008, which would criticize the District's failure to bury power lines on a main corridor of the Brookland area. The Padous paid for “approximately 400 posters to inform residents about the ... political rally.” The posters were attached to utility poles on August 16, 2008, but a District government worker removed them on August 18, on the ground that they did not comply with applicable District of Columbia regulations.¹ The Padous and others associated with Leave the Trees put up new posters on August 19 and 20. About two hundred residents attended the rally.

In their amended complaint, which was filed on December 4, 2008, the Padous alleged two causes of action, only one of which pertains to this appeal. ² Count One of the Complaint alleges a constitutional First Amendment violation, as reflected in part, by the following paragraphs:

23. The removal of the posters by the District through its agency DPW was selective and based solely on the content of the posters. The only posters removed were those hung by Leave the Trees announcing the rally. DPW did not remove posters hung on the same poles by commercial entities. None of the commercial posters examined by Plaintiffs included contact information, the date posted, or evidence of filing with the Mayor of the District of Columbia.

24. The District's enforcement of 24 DCMR § 108 through its agency DPW was arbitrary and amounted to an infringement of Plaintiffs' right of freedom of speech guaranteed by the First Amendment to the Constitution of the United States.

25. DPW and its director ... willfully violated Plaintiffs' right to freedom of speech guaranteed by the First Amendment to the Constitution of the United States.

26. 24 DCMR § 108 unreasonably and impermissibly burdens speech and as such is an unconstitutional regulation of speech.

These paragraphs may be read to allege both an “as applied” and a facial First Amendment challenge to 24 DCMR § 108; that is, as applied to the Padous, § 108 is unconstitutional, and the statute is unconstitutional on its face. As relief, the Padous requested, in part, that the trial court:

1. Declare Defendants' actions in tearing down posters announcing the Leave the Trees rally to be unconstitutional.

2. Award Plaintiffs damages to cover the cost of printing posters and for the willful violation of Plaintiffs' constitutional rights.

3. Declare 24 DCMR § 108 to be unconstitutional.

The case proceeded at a rapid pace in the trial court. The Padous moved for a preliminary injunction on January 5, 2009, which the District opposed. The injunction request was designed to stop construction on the Brookland streetscape project until the issue about the power lines had been resolved. While the injunction request was still pending, the District lodged a motion to dismiss the amended complaint or, alternatively, for summary judgment, on January 28, 2009.³ Evidentiary hearings on the Padous' preliminary injunction request took place on February 4 and 5, 2009.⁴ The trial court orally denied the requested injunctive relief at the end of the hearing.

After receiving a short extension of time in which to file their pleading, the Padous submitted their opposition to the District's motion to dismiss or, alternatively for summary judgment, on February 18, 2009.⁵ While the opposition memorandum of points and authorities stated that the District's motion should be disposed of as a motion for summary judgment, it also emphasized that there were material facts in dispute and contended that “it is inappropriate to grant a motion for summary judgment before the non-moving party has had a chance to conduct discovery,” including discovery pertaining to the Padous' contention that “ 24 DCMR § 108 is unconstitutional as applied.” The memorandum further asserted that the parties “have not even appeared before the court for the initial status hearing set for March 13, 2009.” In addition, Mr. Padou's declaration stated that “[b]ecause of time pressures associated with preparing for the preliminary injunction hearing, [he had] been unable to conduct any discovery in connection with ... count one, violation of freedom of speech.” He added that “[t]here has not been sufficient time to schedule deposition of Defendant's employees.” The District's reply, filed on March 2, 2009, argued in part, that the Padous presented no valid constitutional challenge to § 108, that discovery was unnecessary because no material facts were in dispute, and that the District government employee's declaration established that “there was no discrimination by Defendants in removing Leave the Trees' posters, and, in fact, Leave the Trees' posters were not the only posters removed [on August 18].”

The trial court released its order granting the District's alternative motion for summary judgment on March 9, 2009. The court apparently first considered the Padous' argument that 24 DCMR § 108 is facially invalid under the First Amendment; as the court stated the Padous' argument: “Plaintiffs ... assert that the entire regulation is unconstitutional because ‘it lacks clear and objective criteria for its administration’ and, consequently, permits ‘unbridled discretion.’ ” After specifying that the Padous' argument focused on §§ 108.3 and 108.5, the court declared: “Even assuming that subsections 108.3 and 108.5 impose content-based restrictions, the plaintiffs suffered no injury under those subsections-simply put, the plaintiffs have no standing to invoke those provisions.”

Furthermore, the trial court interpreted the Padous' First Amendment selective enforcement claim as an equal protection claim, rather than as a First Amendment contention that, as applied to them, § 108 is unconstitutional. As the court stated, in part:

The plaintiffs also argue that the District has selectively enforced the regulation....

In essence, the plaintiffs are making a claim of selective enforcement under the equal protection clause.... However, the plaintiffs have failed to allege that the regulation is being enforced against them based on their race, national origin, religion or other impermissible basis....

ANALYSIS

The Arguments of the Parties

In essence, the Padous' claim that they did not have an opportunity to develop their “as applied” First Amendment argument in the trial court, that is, the argument that (1) “the District was impermissibly motivated by disagreement with the critical content of the Padou posters when the District tore those posters down”; and hence, (2) “the District ... selectively enforce[d] its posting regulation because it tore down all posters critical of District policies and did not tear down all posters that were not critical of District policies, even when those posters were hung on the same utility poles and violated the posting regulation.” They claim that the trial court “did not address the issue of the adequacy of discovery,” which they had raised in their opposition to the District's alternative motion for summary judgment and in Mr. Padou's Declaration. They complain that they did not have sufficient time to conduct discovery relevant to their “as applied” First Amendment constitutional claim. They maintain that, as pro se litigants, they “were confused about the operation of Super. Ct. Civ. R. 56(f),” but the trial court “provided no notice about the deficiency in [their] declaration nor about how to properly invoke the provision.” Consequently, they “are forced to infer that their declaration was somehow deficient.” They contend that the trial court “abused its discretion in granting summary judgment against [them] without providing proper notice about the consequences and operation of the summary judgment rules.” With respect to the trial court's decision on their facial invalidity challenge to § 108, the Padous mainly argue that “[s]ince the regulation's restriction on protected speech is both substantial and real, the entire regulation is overbroad and, therefore,...