Ross v. Goshi

• Decision Date: 20 December 1972
• Docket Number: Civ. No. 72-3610.
• Citation: 351 F. Supp. 949
• Parties: Peggy Ha'o ROSS and Frederick Donald Ross, Individually and on Behalf of all other persons similarly situated, Plaintiffs, Bruce Bowen and Steven A. Black, Plaintiffs-Intervenors, v. Stanley S. GOSHI, Director, Department of Public Works, County of Maui, State of Hawaii, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

351 F. Supp. 949

Peggy Ha'o ROSS and Frederick Donald Ross, Individually and on Behalf of all other persons similarly situated, Plaintiffs, Bruce Bowen and Steven A. Black, Plaintiffs-Intervenors, v. Stanley S. GOSHI, Director, Department of Public Works, County of Maui, State of Hawaii, et al., Defendants.

Civ. No. 72-3610.

United States District Court, D. Hawaii.

December 20, 1972.

Michael A. Town, Hawaii Legal Services Project, Wailuku, Hawaii, for plaintiffs.

John S. Edmunds, Mattoch, Edmunds, Kemper & Brown, Honolulu, Hawaii, for plaintiffs-intervenors.

Ernest K. C. Ching, Deputy County Atty., County of Maui, Wailuku, Maui, Hawaii, for defendants.

Outdoor Circle, Inc., J. Garner Anthony, Anthony, Waddoups, Hoddick & Anderson, Honolulu, Hawaii, amici curiae.

SAMUEL P. KING, District Judge.

Plaintiffs and Plaintiffs-Intervenors, individually and on behalf of all other persons similarly situated, brought this suit against officials of the County of Maui, State of Hawaii, for a declaratory judgment and injunctive relief seeking to have this court declare unconstitutional section 3(a) (4) of Maui County Ordinance No. 308 (hereinafter sometimes "MCO 308"), as amended by Maui County Ordinance No. 697 (hereinafter sometimes "MCO 697"), on the grounds that it is in violation of the First and Fourteenth Amendments to the Constitution of the United States.¹

As amended, section 3(a)(4) prohibits all outdoor political campaign signs—except signs identifying the headquarters of a political candidate—placed on real property, buildings and structures in view of the general public.²

Plaintiff Peggy Ha'o Ross and Plaintiffs-Intervenors Bruce Bowen and Steven A. Black³ are residents of Maui County and were duly registered candidates in the primary election held on October 7, 1972, for the respective County offices of Mayor, Councilman from Molokai Island, and Councilman from Maui Island. In addition, Plaintiff-Intervenor Steven A. Black was successful in the primary election and will be a candidate in the general election to be held on November 7, 1972. In furtherance of their campaigns for elective office, they have displayed, are displaying and wish to display in the future, political campaign signs in a manner prohibited by amended section 3(a)(4) of MCO 308.

Plaintiff Frederick Donald Ross is a registered voter in Maui County, and appears as the alleged representative of (1) all individuals who wish to campaign for candidates of their choice using methods proscribed by MCO 308, and (2) registered voters in the County who wish to consider the views of all candidates, some of whom might utilize the methods proscribed by MCO 308. He is also the husband of Peggy Ha'o Ross.

Defendants Stanley S. Goshi and Abraham Aiona are public officials of Maui County and are respectively, Director of the Department of Public Works and Chief of Police.⁴

MCO 308 provides for the regulation and control of outdoor signs. Signs are defined in section 2 to include those "used to advertise or promote the interests of any person when the same is placed out of doors on real property or buildings or structures thereon in view of the general public." The declared purpose in section 1 is to abate the traffic and fire hazards caused by the proliferation of such signs and to preserve the natural beauty of the County. Section 6 provides, in pertinent part, that "it shall be unlawful to erect or maintain" all signs upon penalty of up to $500 a day,⁵ except those permitted under section 8, and that section provides no exception for political campaign signs. The intent to prohibit such signs is made manifest in amended section 3(a)(4) where it is stated: "it is the intent of this section to prohibit all political campaign billboards, signs and posters and no other part of this article shall be used as a means of permitting political campaign billboards, signs or posters. . . ."⁶

As originally enacted on October 20, 1961, section 3(a)(4) exempted political campaign signs not exceeding 18 square feet in display surface from the operation of the law for a period of 60 days preceding and 10 days following a special or general election.⁷ This exemption was withdrawn by the County Council on May 24, 1971, with the enactment of MCO 697 amending section 3(a)(4).⁸ As noted above, amended section 3(a)(4) bans all political campaign signs at all times. Moreover, County authorities have publicly announced their intention to enforce this prohibition,⁹ and Plaintiffs and Plaintiff-Intervenor Bowen have been notified by uniformed policemen that their actions in displaying political campaign signs are illegal and will subject them to prosecution.

Defendants argue that the court should abstain from deciding the merits of this case, in conformity with the principles enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and related cases.¹⁰Younger concerned an action in federal court to stay a state court criminal proceeding on the grounds that the subject penal statute was in violation of the First and Fourteenth Amendments. The Supreme Court held that abstention was proper even though the statute was possibly unconstitutional "on its face." 401 U.S. at 54, 91 S.Ct. 746. However, as noted in the recent Ninth Circuit case of Rivera v. Freeman, 469 F.2d 1159 (decided November 17, 1972), the threshold question in applying Younger is whether the federal action is an attempt to stay state court proceedings. There are no state proceedings pending in this case and hence the principles of comity and federalism which underlie Younger are not controlling here.¹¹

Section 8 of MCO 308, as amended by MCO 697, allows the display of various types of commercial signs after licensing and regulation. A wide range of other signs are exempted by section 3 from any form of regulation. These include all signs of a temporary nature, small signs not exceeding two square feet in display surface, institutional signs, public signs, directional signs, theater signs, and so on. Yet political signs reasonable in size, structure and appearance are totally banned. The operative distinction, then, between political signs that are proscribed and other signs that are permitted is the message on the sign. The question before the court is whether this selective prohibition of political signs violates constitutionally protected rights of Plaintiffs and Plaintiffs-Intervenors. This court holds that it does.

It has been continually recognized that reasonable time, place and manner regulation of outdoor signs may be enacted to further significant governmental interests. See Peltz v. City of South Euclid, 11 Ohio St.2d 128, 228 N. E.2d 320 (1967). Similarly, there may be sufficient regulatory interests justifying selective prohibition of certain types of outdoor signs. But these justifications must be carefully scrutinized where the prohibition encroaches upon First Amendment freedoms. Because political campaign signs are plainly a form of expression protected by the First Amendment, see Lovell v. City of Griffin, 303 U.S. 414, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Peltz v. City of South Euclid, supra, the County has the burden of showing not only that MCO 697 has some rational relationship to the effectuation of a proper governmental purpose, but additionally, that it is "necessary to promote a compelling state interest." Dunn v. Blumstein, 405 U.S. 330, 337, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274 (1972) (Emphasis by the Supreme Court). And there is no compelling state interest in a particular regulatory scheme when less drastic means are available for achieving the same basic purpose. See Shelton v. Tucker, 364 U. S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960).

Defendants have made no showing that political signs reasonable in size, structure, appearance and placement constitute a safety hazard or blemish on the natural beauty of Maui County different from the many types of commercial and exempt signs expressly permitted by MCO 308. Defendants did show that, under MCO 308 as originally enacted, political signs appeared during the exempted election season¹² in such profusion and variety as possibly to warrant some sort of regulation.¹³ The official reaction to this situation was to enact MCO 697. In a constitutional context, this was overreaction. As noted by the Supreme Court of Ohio in Peltz v. City of South Euclid, supra, whose reasoning this court adopts:

There are numerous devices available to a municipality other than outright prohibition to combat the nuisances which might flow from the use of political signs. A municipality is not powerless to enact and enforce reasonable regulations directed against those responsible for littering the streets or private property. It may enact ordinances prohibiting the attachment of political posters to public property and permitting recovery of the cost of removal of such posters. Citation. It may not, on the other hand, enforce a wholesale prohibition against them. 11 Ohio St.2d at 133, 228 N.E.2d at 324. (Emphasis added.)

Accordingly, MCO 697 (amending section 3(a)(4) of MCO 308) is unconstitutional because it infringes on Plaintiffs' and Plaintiffs-Intervenors' rights to freedom of speech and equal protection of the law when less drastic means are available to foster the governmental interests of public safety and aesthetics advanced by Defendants. Dunn v. Blumstein, supra; Peltz v. City of South Euclid, supra; Schneider v. New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939).

The court, in holding MCO 697 unconstitutional leaves section 3(a)(4) as it was prior to the 1971 amendment, that is, as originally enacted by MCO 308.

It is a general rule of application that, where an act purporting to amend and re-enact an existing statute is void, the original statute remains in force. Frost v. Corporation Comm'n, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed....