Padou v. District of Columbia

• Decision Date: 03 October 2013
• Docket Number: No. 12–CV–51.,12–CV–51.
• Citation: 77 A.3d 383
• Parties: Don PADOU, et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

77 A.3d 383

Don PADOU, et al., Appellants,

v.DISTRICT OF COLUMBIA, Appellee.

No. 12–CV–51.

District of Columbia Court of Appeals.

Submitted June 4, 2013.

Decided Oct. 3, 2013.

Don Padou and Abigail Padou, pro se.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and James C. McKay, Jr., Senior Assistant Attorney General, were on the brief for appellee.

Before FISHER and EASTERLY, Associate Judges, and Farrell, Senior Judge.

EASTERLY, Associate Judge:

Don and Abigail Padou posted a large number of signs advertising for an upcoming community rally on utility poles and public lampposts in their Brookland neighborhood. District officials removed the signs, citing non-compliance with three subsections of 24 DCMR § 108 (2012) (regulating the posting of “signs, posters and placards”). The Padous sued the District of Columbia, alleging that, both as applied to them and on its face, the regulation violated the First Amendment. The trial court (Hon. Judith E. Retchin) granted the District summary judgment, but this court in Padou v. District of Columbia, 998 A.2d 286 (D.C.2010) (“Padou I ”) reversed. On remand, the Padous abandoned their as-applied challenge and the trial court (Hon. Craig Iscoe) ¹ dismissed the remainder of the Padous' case on standing and mootness grounds, thereby obviating a merits ruling on their facial challenges to § 108. The Padous appealed this ruling, and again we reverse.

Although we agree with the trial court that the Padous did not have standing to litigate facial challenges either to § 108 as a whole or as to particular subsections of § 108 that were never applied to them, the Padous did have standing to challenge those subsections that the District asserted they had violated: §§ 108.7, 108.10, and 108.11. Moreover, the Padous' challenges to these three provisions were not rendered moot by amendments to other subsections of the statute. Therefore, the trial court should have ruled on the merits of the Padous' arguments that (1) §§ 108.7, 108.10, and 108.11 are not permissible time, place, and manner restrictions on speech (factoring in, with respect to § 108.11, the right to speak with anonymity), and (2) § 108.10 is unconstitutionally vague. We remand a second time so that the Superior Court can consider the merits of these claims.

I. Facts and Procedural History²

The Padous are part of a group called “Leave the Trees” that was formed to lobby the District to bury utility lines in Brookland. In August 2008, the Padous created approximately 400 posters advertising a rally at which they would advocate their cause, and they hung them on utility poles and public lampposts along 12th Street, N.E. Some of the signs said, “Leave the Trees”; others said, “This pole could be a tree.” Each of the signs advertised the upcoming rally. Two days after the Padous posted the signs, the District removed them because the signs failed to comply with three subsections of 24 DCMR § 108.

Specifically, the District informed the Padous that the signs were removed because they failed to comply with 24 DCMR § 108.7, which requires each sign to contain the date upon which it was initially posted; 24 DCMR § 108.10, stating that “[n]o more than three ... versions or copies of each sign” may be posted on one side of the street on a single block; and 24 DCMR § 108.11, requiring that copies of the signs and identifying and contact information for the “originator of the sign” be filed with the District.³ The Padous admittedboth that the posting date was not on the signs and that they did not file copies of their posters (with or without identifying and contact information) with the District within 24 hours of posting the signs. The Padous stated in their complaint that they hung 400 posters, but they did not indicate how many city blocks they covered. Abigail Padou apparently also said in her deposition that the Padous “probably” hung more than three posters per block.⁴ Two days after the signs were removed, the Padous hung new signs.

The Padous sued the District, alleging that 24 DCMR § 108 violated the First Amendment. Seemingly challenging the regulation as a whole, the Padous asserted that it was “questionable” whether the regulation was content-based or content-neutral, but that it was facially unconstitutional either way. The Padous also alleged that the law was unconstitutional as applied because it was selectively enforced against them.

After minimal discovery, the trial court granted the District's motion for summary judgment, ruling that the Padous did not have standing to challenge any subsections of § 108 other than those that had been applied to them (§§ 108.7, 108.10, and 108.11), and denying the Padous' facial challenge to those provisions. The trial court also denied the Padous' selective enforcement challenge.

This court reviewed the order granting summary judgment in Padou I. We focused on the Padous' selective enforcement claim, and held that the trial court incorrectly construed this claim as an equal protection challenge, rather than an as-applied challenge under the First Amendment. Padou I, 998 A.2d at 293. We also held that the Padous, as pro se litigants, were not given sufficient time in discovery to develop this claim. See id. at 293–94. We did not address the disposition of the Padous' facial challenges to 24 DCMR § 108, except to note that “traditional Supreme Court practice ... requires a court to first consider an ‘as applied’ challenge” before turning to any facial challenges. Id. at 293. Nonetheless, we reversed the entirety of the summary judgment order and remanded “with instructions to afford the parties an opportunity to conduct discovery, followed by further proceedings (dispositive motions or trial).” Id. at 295.

On remand, after conducting discovery, the Padous conceded their selective enforcement claim against the District. Although they abandoned their as-applied challenge, the Padous moved for summary judgment on their facial challenges, which now encompassed a challenge to § 108.10 on vagueness grounds and a challenge to § 108.11 based on their right to speak with anonymity. In response, the District defended against all of the Padous' facial challenges and cross-moved for summary judgment. Specifically, the District argued that the Padous did not have standing to challenge sections of the regulation that did not apply to them; the provisions were constitutional time, place, and manner restrictions; § 108.11 was not an unconstitutional restriction on anonymous speech; and § 108.10 was not unconstitutionally vague.

The trial court did not reach the merits of either the Padous' or the District's summary judgment motions. Instead, the court ruled that both summary judgment motions were moot because 24 DCMR § 108 had been amended. ⁵ The District then moved to dismiss the case, and the trial court granted that request. After noting both that the Padous had waived their as-applied challenge and that it had previously ruled that the Padous' facial challenges were moot, the trial court ruled that the “remaining challenges to the regulation fail because the Plaintiffs no longer have standing” given that the Padous “have not alleged that they suffered personal injury under the amended regulation.” Because the trial court concluded that none of the Padous' claims were live, it granted the District's motion to dismiss. This appeal followed.

II. Analysis

We review de novo the trial court's ruling dismissing the case. Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 543 (D.C.2011). Given that the Padous have abandoned their as-applied challenge to 24 DCMR § 108, the correctness of the trial court's ruling turns on whether the Padous' facial challenges were properly resolved. In particular, we must consider whether the trial court's standing and mootness rulings were correct, and we likewise review de novo these questions of law. See Lewis v. District of Columbia Dep't of Motor Vehicles, 987 A.2d 1134, 1138 (D.C.2010) (standing); N St. Follies Ltd. P'ship v. District of Columbia Bd. of Zoning Adjustment, 949 A.2d 584, 589 (D.C.2008) (mootness).

We begin by addressing the Padous' standing to sue. Without distinguishing between the particular subsections of 24 DCMR § 108, the trial court held that the Padous lacked standing to challenge any part of that regulation. We hold that the Padous did have standing to challenge the subsections under which they alleged injury: §§ 108.7, 108.10, and 108.11.

“The question of standing ‘involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.’ ” Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).⁶ “The irreducible constitutional minimum of standing” requires a plaintiff to show “an injury in fact,” i.e., “that the party seeking review be himself among the injured,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 563, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); in addition a plaintiff must show that this “injury ‘fairly can be traced to the challenged action’ ” and that this injury “ ‘is likely to be redressed by a favorable decision.’ ” Id. at 560, 112 S.Ct. 2130. “Beyond the constitutional requirements, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Most notably, a “plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Id. at 474, 102 S.Ct. 752 (quoting Warth, 422 U.S. at 499, 95 S.Ct. 2197).

The Padous' posters were taken down because they violated three subsections of 24 DCMR...