State v. Ficker

• Decision Date: 12 October 1972
• Docket Number: Nos. 74,99,s. 74
• Citation: 295 A.2d 231,266 Md. 500
• Parties: STATE of Maryland v. Robin FICKER a/k/a Robin Keith Annesley Ficker. MONTGOMERY COUNTY, Maryland v. Robin FICKER a/k/a Robin Keith Annesley Ficker.
• Court: Maryland Court of Appeals

Page 500

266 Md. 500

295 A.2d 231

STATE of Maryland v. Robin FICKER a/k/a Robin Keith Annesley Ficker.

MONTGOMERY COUNTY, Maryland v. Robin FICKER a/k/a Robin Keith Annesley Ficker.

Nos. 74, 99.

Court of Appeals of Maryland.

Oct. 12, 1972.

Peter I. J. Davis, Asst. State's Atty., for Montgomery County, Rockville, and Gary Melick, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty., for Montgomery County, Rockville, on the brief).

William J. Chen, Jr., Asst. County Atty. (Richard S. McKernon, Acting County Atty., Alfred H. Carter, Deputy County Atty., and Stephen P. Johnson, Asst. County Atty., Rockville, on the brief), for appellants.

Selma W. Samols, Kensington, and Gary Howard Simpson, Chevy Chase, for appellee.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

MURPHY, Chief Judge.

Robin Ficker announced his candidacy for Congress from the Eighth Congressional District of Maryland on April 13, 1971. Shortly thereafter, 'Your Friend Ficker' signs, advocating Ficker's congressional candidacy, began to appear in large numbers on utility poles, traffic control devices, and other structures within the municipal, County and State road rights of way in Montgomery County. In July of 1971, Ficker was notified by the Montgomery County Division of Zoning, Permits and Licenses that he was violating the County Sign Ordinance (Montgomery County Code, 1969 Ed. Ch. 111), particularly §§ 111-28d(6), 111-28f(1)(f) and (g) which, among other things, restricted the posting of political campaign signs to private property not earlier than thirty days prior to the date of the primary election, and prohibited placement of signs on a municipal, County, or State right of way or the pasting or attachment thereof to utility poles or other signs. ¹ Despite the County's notification, Ficker's campaign to inundate the Montgomery County landscape with 'Your Friend Ficker' signs continued without letup. Thereafter, in September of 1971, the State's Attorney for Montgomery County instituted criminal proceedings against Ficker, alleging that the posting of Ficker's signs violated the provisions of Maryland Code, Article 66C, § 366, declaring it a misdemeanor, punishable by a fine up to $10.00, to affix or procure another to affix any sign to any 'pole, building or other structure which is in or upon the public highway or which is on the property of another, without first obtaining the written consent of such owner'. Ficker was thrice convicted in October of 1971 in the District Court of affixing his signs to utility poles without permission in violation of this statute. On each occasion he posted the $10.00 fine, appealed to the Circuit Court for Montgomery County, and continued erecting 'Your Friend Ficker' signs in violation of the State and County laws.

In November of 1971, at a radio interview, Ficker was asked about his convictions for violating § 366. He stated that he intended 'to keep appearing because we feel a person who doesn't have a lot of money, who is not rich and does not have rich friends has to have a way of getting his name before the public.' Ficker acknowledged during the interview that he had 'lots of signs out at one time or another.' He said 'as fast as I put them up the County seems to be taking them down'; that the County has 'as much as four crews of people out taking them down' but that he had 'lots of people putting them up.' Ficker expressed the belief at that time that the County Sign Ordinance constituted an unwarranted restriction on his First Amendment rights of free speech.

Between October 1971 and January 1972, the Maryland State Roads Commission removed 2,657 Ficker signs from utility poles within the State roads rights of way in Montgomery County. During this same period, Montgomery County removed 1,200 Ficker signs posted in violation of the County Ordinance; in doing so, it was required to employ four additional men at a cost of over $1,000.00. While the State and County were removing Ficker's signs, he was posting new ones in large numbers in such a way that they could not be removed without the aid of ladders or similar devices.

On January 4, 1972, Montgomery County, Maryland, acting through tyhe County Attorney, filed its Bill of Complaint to enjoin Ficker from posting his political campaign signs in violation of the County's Sign Ordinance. The Bill alleged that although Ficker had been notified by the County that he was violating the Ordinance, and had three times been convicted of violating the similar State statute (Article 66C, § 366), he had not been thereby dissuaded from his illegal sign posting activity but continued to violate the Ordinance, causing the County to incur great expense in removing the signs. The Bill further alleged that Ficker's conduct 'in posting the aforementioned signs constitutes a continuing violation of the . . . (County Ordinance), and, if such postings are allowed to continue, they will cause irreparable damage to the Plaintiff by continuing an unlawful activity which is detrimental to maintaining the peace, good government, health and welfare of Montgomery County, Maryland, and will establish a precedent for the wanton violation of the aforesaid laws.' In addition to praying that Ficker be enjoined from continuing to post his political campaign signs in violation of the Ordinance, the County sought an order directing that Ficker remove all illegally posted signs at his expense and that the County be awarded incidental damages for injury to its public streets and neighborhoods and for the cost incurred by it in removing the illegal signs.

On January 6, 1972, the State of Maryland, acting through the State's Attorney for Montgomery County, filed a Bill of Complaint to enjoin Ficker from violating the provisions of Article 66C, § 366. The Bill alleged that while Ficker had thrice been convicted of violating § 366, he nevertheless continued to engage in posting signs violative of that Section's provisions; that the cost of criminally prosecuting Ficker for each violation of the Section significantly exceeded the $10.00 maximum fine; that the State was therefore without an adequate remedy at law to enforce § 366, which was intended to protect property from unseemly and careless disfigurement; that Ficker's illegal conduct so disfigured utility poles 'as to constitute a nuisance' and cause 'irreparable harm and damage' to the people of the State. The Bill sought an order enjoining Ficker from violating § 366 'pending the outcome of * * * (Ficker's appeals from his criminal convictions)'; it also sought an order permanently enjoining Ficker from violating § 366 and an order requiring Ficker 'to remove all signs presently existing in Montgomery County in violation of Article 66C, § 366.'

Within a week after the State and County had filed their respective suits for injunctive relief, Ficker personally affixed his political campaign signs to five more utility poles in Montgomery County.

The Circuit Court for Montgomery County (Pugh, J.), following a hearing held on March 2, 1972, concluded by opinion dated April 5, 1972, that the State's Attorney for Montgomery County was not empowered to initiate a civil action to enjoin Ficker from violating § 366. The court added, by way of alternate independent grounds for dismissing the State's Bill for Injunctive Relief, that the criminal sanction for violating § 366 constituted an adequate remedy at law and, further, that under the facts of the case, the posting of Ficker's signs, even though violative of § 366, did not constitute a public nuisance. From the court's decree denying injunctive relief, the State appealed. ²

By opinion dated April 7, 1972, Judge Pugh also dismissed the County's suit for injunctive relief. While recognizing that Montgomery County had statutory authority to enforce the County's Sign Ordinance by filing a Bill for Injunctive Relief, the court held that 'vigorous (criminal) prosecution' of Ficker under the provisions of § 111-28 l 4, which authorized imposition of a criminal penalty up to a $500.00 fine for each violation of the Ordinance, constituted 'an adequate and more suitable remedy' than injunctive relief. From this decree of disimissal, the County appealed.

I The State's Suit for Injunctive Relief

Ficker was defeated at the primary election held May 16, 1972; he is therefore no longer a viable candidate and his name will not appear on the ballot at the general election of November 7, 1972. Ficker claims that his signs posted in violation of § 366 have all been removed so that the acts sought to be enjoined by the State have now ceased. At oral argument of the appeal, counsel for the State conceded that Ficker's signs posted in violation of § 366 have now been removed. While the State does not contend that Ficker is continuing to erect signs in violation of § 366, it suggests that the injunctive relief sought was improperly withheld because it is likely that Ficker will post political campaign signs in violation of § 366 in future elections and a permanent injunction to prohibit him from doing so should have been granted.

Appellate courts do not sit to give opinions on abstract propositions or moot questions, and appeals which present nothing else for decision are dismissed as a matter of course. Potts v. Governor of Maryland, 255 Md. 445, 258 A.2d 180, Washburne v. Hoffman, 242 Md. 519, 219 A.2d 826. Since the acts sought to be enjoined have ceased and the offending signs removed, it would be an act of futility, a useless gesture of no effect whatsoever, to consider the question whether the Chancellor erred in not enjoining Ficker from violating the provisions of § 366. See State v. Sheridan, 248 Md. 320, 236 A.2d 18. In these circumstances, we think it manifest that the case is now moot and must be dismissed. Maryland Rule 835(b)(8); Prucha v. Weiss, 233 Md. 479, 197 A.2d 253; Thom v. Cook, 113...