McFadden v. City of Bridgeport
| Decision Date | 20 March 2006 |
| Docket Number | No. Civ.A. 1:04CV225.,Civ.A. 1:04CV225. |
| Citation | 422 F.Supp.2d 659 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | Daniel MCFADDEN, Plaintiff, v. CITY OF BRIDGEPORT, Defendant. |
Robert M. Bastress, Jr., WVU College of Law, Morgantown, WV, Terri S. Baur, American Civil Liberties Union of WV, Charleston, WV, for Plaintiff.
Norman T. Farley, Perry B. Jones, West & Jones, Clarksburg, WV, for Defendant.
The question presented in this case is whether provisions of the defendant, City of Bridgeport's (Bridgeport), sign ordinance, Article 1325 of the Codified Ordinances of Bridgeport (the Ordinance), violate the First Amendment. The plaintiff, Daniel McFadden (McFadden), challenges the constitutionality of Sections 1325.07 and 1325.13 of the Ordinance on free speech grounds. Section 1325.07 prohibits the posting of "temporary" and "political" signs within city limits more than thirty (30) days before and forty-eight (48) hours after the specific event they publicize or the voting day. Section 1325.13 requires individuals to obtain permits from the city prior to displaying any signs, except those exempted from regulation by the Ordinance and "temporary" and "political" signs.
Section 1325.07 of Bridgeport's Ordinance is unconstitutional. By limiting the time period an individual may post political signs within the City of Bridgeport, Section 1325.07 burdens speech. Furthermore, that burden is content-based since the Ordinance's temporal restrictions apply only to limited categories of signs based on what those signs say. Moreover, because the City's asserted interests in regulating temporary and political signs are not compelling, Section 1325.07 of Bridgeport's Ordinance fails to satisfy strict constitutional scrutiny and violates the First Amendment on its face.
Requiring individuals to obtain permits prior to engaging in protected speech also violates the First Amendment if no standards and procedures exist to determine the award of those permits. Nevertheless, this opinion does not reach the merits of McFadden's challenge to Bridgeport's permit requirement as an unconstitutional prior restraint on an individual's freedom to engage in political speech through the display of political signs. That challenge has been rendered moot by Bridgeport's subsequent amendment of the Ordinance. Although subsequent amendment or repeal of an ordinance does not necessarily moot a challenge to its pre-amendment language, such action likewise does not automatically necessitate review on the merits. Because the Court finds little likelihood that Bridgeport will reenact the pre-amendment version of Section 1325.13 (), and because the current version of Section 1325.13 imposes no permitting requirement on the display of political signs, McFadden's prior restraint challenge is moot.
For these reasons, as more fully discussed below, the Court GRANTS-IPART and DENIES-IN-PART McFadden's motion for summary judgment, and GRANTS-IN-PART and DENIES-IPART Bridgeport's cross-motion for summary judgment.
McFadden is a resident of Bridgeport, West Virginia, and a citizen of the United States. He owns a home in the residential neighborhood of West Gate where he has lived for over thirty-five (35) years. The City of Bridgeport is a municipal corporation organized under the laws of the State of West Virginia.
McFadden brings his constitutional challenge to Bridgeport's Ordinance as a civil rights action under Title 42, United States Code Section 1983. In pertinent part, 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
The United States Supreme Court has held that municipalities such as the City of Bridgeport are "persons" subject to the strictures of 42 U.S.C. § 1983. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (overruling Monroe v. Pape, 365 U.S. 167, 81 S.Ct 473, 5 L.Ed.2d 492 (1961)). Thus, Bridgeport is not immune to a challenge to its Ordinance. Further, McFadden's civil rights action presents a federal question and jurisdiction is proper in this Court. 28 U.S.C. § 1331; 28 U.S.C. § 1343(a)(3).
In late August, 2004, McFadden painted two signs in preparation for the 2004 Presidential election. One sign read, "Veterans for Kerry—replant a Bush in Texas," while the other had the symbol of a heart on it and read, "The Heart of West Virginia Beats for Kerry:" While preparing the signs for display, McFadden learned through an acquaintance that the City of Bridgeport had a sign ordinance regulating the placement of political campaign signs. Undeterred, McFadden began displaying the hand-painted signs, along with wire-hinged placards supporting the Kerry/Edwards ticket, in the front yard of his Bridgeport home, on or about September 1, 2004, approximately sixty-two (62) days prior to the November 2, 2004 general election.
Shortly after he began displaying his political signs, McFadden visited the Bridgeport Zoning Department and requested a copy of the City's sign ordinance. In return, an individual at the Zoning Department gave McFadden a copy of a "Notice" which references "Article 1325.07, Temporary and Political Signs, from the Codified Ordinances of Bridgeport." This Notice is used by City personnel to inform property owners that political signs have been removed from the premises.1 He did not, however, receive a copy of the Ordinance.
Prior to the 2004 general election, McFadden generally displayed one or both of the hand-painted political campaign signs in the front yard of his home during the day and removed them at night. On at least one occasion, he did not display either sign in his yard due to inclement weather. Further, McFadden displayed no signs outside his house for one week in October, 2004, because he was away from home.
At no time during McFadden's display of political signs on his property in advance of the 2004 presidential election did the City of Bridgeport take punitive action against him for violating its Ordinance. City personnel neither removed McFadden's signs nor posted a "Notice" of violation on his signs or real property. Although aware of the Ordinance and its prohibitions, McFadden intends to participate in future elections, including the 2006 general election, by displaying political signs on his property more than one month prior to those elections.
On November 3, 2004, McFadden, by his attorneys, Robert M. Bastress and Terri S Bauer, filed an Amended Complaint pursuant to 42 U.S.C. § 1983 seeking a declaration that Bridgeport's Ordinance violates the First and Fourteenth Amendments of the Constitution. He also sought an injunction barring Bridgeport from enforcing its Ordinance against his placement of political signs on his property, and an award of costs and reasonable attorneys' fees. (Doc. No. 3.) In his Amended Complaint, McFadden claims that Bridgeport's Ordinance abridges his freedom of speech in two ways. First:
The temporal restrictions in defendant City's sign ordinance [, Section 1325.07(a & b),] violates [sit] plaintiff's rights guaranteed to him by the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983 .... [Moreover] .... [t]he different treatment accorded political signs from nonpolitical signs in the ... ordinance is an unwarranted and unconstitutional content discrimination ....;
and second:
The permit requirement [,Section 1325.13,] is an unconstitutional prior restraint and confers unbounded and undue discretion on city officials over plaintiff's ability to express his political beliefs and therefore violates his rights under the First and Fourteenth Amendment[s] to the United States Constitution.
On November 19, 2004, the City of Bridgeport, by its attorneys, Norman T. Farley and Perry S. Jones, answered McFadden's Amended Complaint asserting that its sign ordinance "speaks for itself" and denying the legal conclusions drawn by McFadden's claims.
Approximately three (3) months later, on February 28, 2005, Bridgeport amended the challenged provisions of Article 1325, and the alleged impact of those amendments is reflected in the parties' respective dispositive filings. On August 10, 2005, McFadden filed a motion for summary judgment asserting five (5) grounds in support of his claims. Four (4) of those grounds argue in the alternative and are offered to support his claim that the temporal restrictions in Section 1325.07 violate the First Amendment. In essence they are:
1) The temporal restrictions on "temporary" and "political" signs in Section 1325.07 create content-based restrictions that do not serve compelling state interests;
2) If found to be content-neutral, however, then the temporal restrictions in Section 1325.07 create an unreasonable time restraint on protected speech;
3) If found to be content-neutral, however, then the temporal restrictions in Section 1325.07 affect the use of signs to communicate matters of public concern and create an unreasonable regulation of the manner of speech; and
4) As applied to McFadden, the temporal restrictions in Section 1325.07 are overbroad because the Ordinance regulates his ability to place signs on his own property.
McFadden's fifth ground reiterates his challenge to Section 1325.13 by asserting that Bridgeport's requirement that individuals obtain permits...
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...Id. at 301.Courts in other circuits have come to the same conclusion about similar statutes. For example, in McFadden v. City of Bridgeport, 422 F.Supp.2d 659 (N.D.W.Va.2006), the court found that certain restrictions on temporary signs were "content-based," even though, by the text of thos......
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