Quinly v. City of Prairie Village Kan., 06-2327-JWL.

• Decision Date: 31 August 2006
• Docket Number: No. 06-2327-JWL.,06-2327-JWL.
• Citation: 446 F.Supp.2d 1233
• Court: U.S. District Court — District of Kansas
• Parties: John David QUINLY, Plaintiff, v. CITY OF PRAIRIE VILLAGE, KANSAS, Defendant.

Page 1233

446 F.Supp.2d 1233

John David QUINLY, Plaintiff, v. CITY OF PRAIRIE VILLAGE, KANSAS, Defendant.

No. 06-2327-JWL.

United States District Court, D. Kansas.

August 31, 2006.

John M. Simpson, John M. Simpson, Attorney at Law, Stephen D. Bonney, Bonney Law Office, Kansas City, MO, for Plaintiff.

Amii N. Castle, Charles E. Wetzler, Lathrop & Gage, LC, Overland Park, KS, for Defendant.

MEMORANDUM & ORDER

LUNGSTRUM, District Judge.

Plaintiff, a resident of the City of Prairie Village, filed suit against defendant ("the City") asserting that the City's sign ordinance violates the First Amendment to the United States Constitution. This matter is presently before the court on plaintiff's motion for a preliminary injunction (doc. 3). As will be explained, the motion is granted.

I. Factual Background and Key Provisions of the City's Sign Ordinance

Plaintiff John David Quinly is a resident of Prairie Village, Kansas, a municipal corporation and a political subdivision of the State of Kansas. In September 2005, plaintiff was displaying two signs in the yard at his residence. The signs contained a message opposing the war in Iraq. Specifically, the complete message displayed across the two signs stated: "Dubya-End the occupation. Stop murdering the poor in Iraq and help the poor in New Orleans!" On September 20, 2005, a City codes inspector determined that plaintiff's signs violated the City's ordinance pertaining to political signs in that the total square footage of the signs exceeded the total square footage permitted by the ordinance. On October 4, 2005, plaintiff appeared in the City's municipal court and pled no contest to the sign violation. He was convicted and fined $300 for the sign ordinance violation. On October 18, 2005, plaintiff appealed the sign conviction to the District Court of Johnson County, Kansas and in January 2006, at a hearing before the District Court of Johnson County, the City dismissed with prejudice the sign violation. Since that time, plaintiff has continued to display on his residential property political signs expressing his opposition to the war in Iraq and his dissatisfaction with President George W. Bush.

In early June 2006, the City amended its sign ordinance. In so doing, the City repealed the provision entitled "Political Signs," section 19.48.015 L, and replaced that provision with a new section 19.48.015 L, entitled "Informational Signs." The ordinance defines an "Information Sign" as a "noncommercial sign that states, promotes or addresses an expression of free speech, a personal belief, or a political party, candidate or issue and is typically constructed from non-durable materials, including paper, cardboard, plastic and/or wall board." See Ord. 19.48.011 O. New section 19.48.015 L, which applies to informational signs posted in both residential and commercial zoning districts,¹ places restrictions on the size and number of informational signs that may be displayed at one time, places limits on the length of time a particular sign may be displayed and precludes a sign from containing obscene, profane or indecent material. The new section also requires that informational signs be designed to withstand all weather conditions.

Plaintiff alleges that he desires to display informational signs on his residential property that violate the terms of new section 19.48.015 L and that he has refrained from displaying such signs in light of the new ordinance. He filed suit challenging four specific provisions of new section 19.48.015 L on the grounds that these provisions are content-based restrictions that do not survive strict scrutiny and violate the First Amendment to the United States Constitution. The four provisions state, in pertinent part, as follows:

19.48.015 L.2(a): The total square footage for Informational signs in any district, in the aggregate, shall not exceed thirty-two (32) square feet, with no individual sign exceeding sixteen (16) square feet.²

19.48.015 L.2(b): Informational signs shall not display obscene, profane or indecent material.

19.48.015 L.2(f): Signs shall be designed to be stable under all weather conditions, including high winds.

19.48.015 L.2(i): An Informational sign may be posted for a period of up to ninety (90) days, at which time the sign shall be removed or replaced except that those signs tied to an election shall be removed immediately after the date of the election.

Under the ordinance, signs that do not fit within the definition of "Informational Signs" but are nonetheless, like informational signs, temporary in nature, are subject to different (and, in some instances, less favorable) regulations.³ For example, a "for sale" sign announcing the sale of a home in a residential district cannot exceed 8 square feet and a homeowner is permitted to display only one such sign on his or her property; the sign may be displayed for the period that the home is "for sale" and must be removed within 7 days of the execution of the sales contract.

A "garage sale" sign cannot exceed 5 square feet and a homeowner is permitted to display only one such sign on his or her property; the sign may be displayed for the period of the sale only. In addition, "temporary" signs at churches, synagogues, schools and libraries in a residential district cannot exceed 32 square feet and the displaying entity is permitted to display only 3 such signs during a calendar year and each sign may be displayed for a period of 21 days. On its face, the ordinance does not permit a contractor working on a residential home (e.g., Acme Roofing Company building a new roof on the home) to place a sign on the property identifying the business that is providing the goods or services to the homeowner.⁴ The City's sign ordinance prohibits "obscene, profane or indecent material" in any sign, regardless of the type of sign.

II. Preliminary Injunction Standard

"As a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Schrier v. Univ. of Colorado, 427 F.3d 1253, 1258 (10th Cir.2005) (citing SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991)) (citation omitted); United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.1989) ("Because it constitutes drastic relief to be provided with caution, a preliminary injunction should be granted only in cases where the necessity for it is clearly established."). In order to be entitled to entry of a preliminary injunction pursuant to Federal Rule of Civil Procedure 65, the moving party must establish that:

(1) he or she will suffer irreparable injury unless the injunction issues; (2) the threatened injury ... outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood of success on the merits.

Id. (citations, quotations and alterations omitted).

The City contends that the court should scrutinize plaintiff's motion using a heightened standard because plaintiff seeks a "disfavored" preliminary injunction; that is, plaintiff is seeking to alter the status quo. See id. at 1259-60 (identifying as a disfavored preliminary injunction an injunction that seeks to alter the status quo; limited purpose of a preliminary injunction "is merely to preserve the relative positions of the parties until a trial on the merits can be held"). A disfavored injunction "must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course." Id. at 1260 (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir.2004) (en banc)). In such circumstances, a plaintiff is required to make a "strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms" and may not rely on the Circuit's "modified likelihood-of-successon-the-merits standard." Id. at 1261 (quoting 0 Centro, 389 F.3d at 975-96). Ultimately, the court determines that it need not decide whether the injunction sought by plaintiff is disfavored, because, regardless of which standard applies, plaintiff has satisfied the heightened burden described in O Centro.

III. Likelihood of Success on the Merits

When a party seeks a preliminary injunction on the basis of a potential First Amendment violation, the likelihood of success on the merits will often be the determinative factor. Joelner v. Village of Washington Park, Illinois, 378 F.3d 613, 620 (7th Cir.2004) (citing cases). As explained by the Seventh Circuit:

The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury, and money damages are therefore inadequate. Concomitantly, there can be no irreparable harm to a municipality when it is prevented from enforcing an unconstitutional statute because it is always in the public interest to protect First Amendment liberties.

Id. (citations and quotations omitted). The court is persuaded by the Seventh Circuit and, if plaintiff satisfies the "likelihood of success" prong of the four-factor test, the court will grant plaintiff a preliminary injunction. The court, then, focuses solely on whether plaintiff has shown a substantial likelihood of success of the merits of his claims. See Homans v. City of Albuquerque, 264 F.3d 1240, 1244-45 (10th Cir.2001) (where plaintiff demonstrated substantial likelihood of success on the merits of his First Amendment claim, public interest was "better served by following Supreme Court precedent and protecting the core First Amendment right of political expression"); ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir.1999) (upon showing a likelihood of success on the merits in the First Amendment context, other factors are satisfied: irreparable injury is deprivation...