Sullivan v. City of Augusta, No. CIV.04-032-B-W.

• Court: United States District Courts. 1st Circuit. United States District Court (Maine)
• Writing for the Court: Woodcock
• Citation: 310 F.Supp.2d 348
• Parties: Timothy SULLIVAN Plaintiff, v. CITY OF AUGUSTA, Defendant.
• Decision Date: 19 March 2004
• Docket Number: No. CIV.04-032-B-W.

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310 F.Supp.2d 348 Timothy SULLIVAN Plaintiff,
v.
CITY OF AUGUSTA, Defendant. No. CIV.04-032-B-W. United States District Court, D. Maine. March 19, 2004.

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COPYRIGHT MATERIAL OMITTED

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Lynne A. Williams, Law Office of Lynne A. Williams, Glen Cove, ME, Zachary L. Heiden, Maine Civil Liberties Union, Portland, ME, for Timothy Sullivan, Plaintiff.

Michael Kaplan, Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Sigmund D. Schutz, Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Portland, ME, for City of Augusta, Defendant.

ORDER REGARDING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER

WOODCOCK, District Judge.

True to its name, the March for Truth Coalition (Coalition) intends to march. Organized in January 2004, the Coalition has planned a demonstration in Augusta, Maine on Saturday, March 20, 2004, to advocate "worldwide end of war and empire-building, greater honesty and openness in domestic government, affordable health care, veterans' rights and benefits, and living wage jobs." The Coalition intends start its demonstration at the Maine State Capitol building, march through the Augusta city streets, and end with a rally back at the Capitol. To march on city streets, however, the Coalition needs and has applied for a parade permit from the City of Augusta (City). The City is willing to issue a permit but has conditioned its issuance on the Coalition's payment of traffic control and cleanup costs and the furnishing of a bond or other surety for potential damage. Claiming the City's conditions constitute an unconstitutional burden on its exercise of First Amendment rights, Timothy Sullivan (Sullivan), a Coalition organizer, has filed suit against the City, seeking a temporary restraining order enjoining the City against imposing these conditions. This Court concludes the City's bond requirement delegates excessive discretion to the Augusta Chief of its Police Department (Police Chief)and, therefore, GRANTS the Motion for Temporary Restraining Order on the bond requirement. For all other purposes, however, this Court concludes the Augusta parade ordinance passes constitutional muster and therefore, DENIES the Coalition's motion in all other respects.

I. Factual Background

A. The Ordinance.

The City of Augusta regulates parades, marches, or other similar uses of public ways by requiring organizers to secure a municipal permit. Augusta, Me. Rev.Code Ord. ch. 13 § 5(a) [hereinafter § 13-5]. The application must be filed at least thirty days before the event and must include the name, address, and phone number of the person seeking the permit, the date and time for the parade, and its intended route. § 13-5(b). The permit costs $100 payable at the time the application is submitted. § 13-5(e).

Once the application is filed, the ordinance requires the applicant to meet with the Police Chief within ten days "to agree on the details of the route and other logistics." § 13-5(c). The Police Chief may deny the permit, alter its route for "traffic or safety reasons," or impose "reasonable conditions, including ... time limits, requirement to keep moving and on route, no amplification or sound truck, no explosives, fireworks or other artificial noise." § 13-5(d). The Police Department calculates the costs of traffic control and cleanup. § 13-5(e). Finally, the Police Chief may also require, prior to the issuance of the permit, that the applicant furnish a bond or a surety company in an amount up to $10,000.00 to "guarantee cleanup ... compliance with any applicable state and local law or regulation, and payment ... of all

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proper claims against the applicant for damage to real or personal property ... arising out of acts done or omitted to be done by the applicant, his agents or employees." § 13-5(f).¹ Once the Police Department makes these determinations, it informs the applicant. Any additional costs must be paid and evidence of bond or insurance must be presented before the permit is issued. § 13-5(e), (f). An applicant who has been denied a permit or whose permit has been modified may appeal to the city council within five days of the denial or modification. § 13-5(g).

B. The Application.

On February 9, 2004, on behalf of the Coalition, Sullivan formally applied for an "Application for Parade Permit" with the City Police Department, proposing three parade routes. The permit stated that the parade would be held on Saturday March 20, 2004, between 12:30-2:00 p.m.

C. The City's Approval With Conditions.

Of the three approved parade routes,² Augusta Deputy Police Chief Major Gregoire (Gregoire) determined the first approved route would require twelve officers and two police vehicles for traffic control, costing $2,077.44. Gregiore determined the second approved route would require ten officers and two police vehicles costing $1,761.20.³ In later discussions, Gregoire approved a third route, costing $1,543.08. In calculating these costs, Gregoire considered only the following factors: "the number of officers needed given the parade route, the detail rate, and the estimated length of the parade." Gregoire Affidavit at 5. The Gregoire's concern is "traffic control and direction." Id. In fixing this fee, Gregoire did not consider the costs of ensuring the safety of the marchers or any counter-protests. If there is any such concern, these factors would have been considered separately and not assessed under the parade ordinance. Id. at 6.

Gregoire also determined the Coalition would be required to furnish a bond of surety in the amount of $10,000.00 or evidence of appropriate insurance. Sullivan estimated event insurance would cost approximately $450. Currently, the Coalition claims it has assets of only $1,365, held in trust by other non-profit organizations in Maine.

II. Discussion

A. The Legal Standard.

To prevail on his motion for a temporary restraining order (TRO), Sullivan must demonstrate he has a reasonable likelihood of success on the merits and will suffer irreparable harm if the TRO is not granted. Fed.R.Civ.P. 65; Westinghouse Broadcasting Co., Inc. v. Dukakis, 409 F.Supp. 895, 896 (D.Mass.1976). Where deprivation of a First Amendment right is involved, irreparable injury is presumed. Westinghouse, 409 F.Supp. at 896. (noting "any significant denigration of a First

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Amendment right constitutes irreparable harm"); Borreca v. Fasi, 369 F.Supp. 906, 911 (D.Haw.1974) (citing Quaker Action Group v. Hickel, 421 F.2d 1111 (D.C.Cir.1969)). Although Sullivan must demonstrate he has met his burden with respect to the request for preliminary injunctive relief, the burden of demonstrating the constitutionality of the ordinance lies with the City.

B. Preliminary Matters.

As a preliminary matter, this Court must address standing and exhaustion of administrative remedies.

1. Standing⁴

Article III of the Constitution limits the jurisdiction of federal courts to actual cases or controversies. Becker v. Federal Election Comm'n, 230 F.3d 381, 384 (1st Cir.2000). To establish standing, the plaintiff bears the burden of satisfying three prerequisites: (1) an injury-in-fact; (2) a causal connection between the injury and the conduct complained of; and (3) a "likelihood" the injury can be redressed by the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Skrizowski v. United States, 292 F.Supp.2d 277, 280 (D.N.H.2003); see also Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1970) (rejecting the grounds of "public interest" for standing).

The factual requirements to establish standing vary depending on the stage of proceedings. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice. Id. Where prospective relief, such as a restraining order, is sought, the plaintiff need only allege facts that the injury is certainly impending, such as "a sufficient likelihood that he will again be wronged." Skrizowski, 292 F.Supp.2d at 280 (emphasis added); not an "injury-in-fact."

With respect to § 13-5, Sullivan has established standing. As an organizer of the march and a participant, Sullivan has established that he will suffer an "injury in fact," since the conditions of the City's permit will affect him "in a personal and individual way." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Further, he has demonstrated a clear causal connection between the injury and the ordinance. Finally,

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there is a likelihood this Court can redress the injury. Lippoldt v. City of Wichita, 265 F.Supp.2d 1228 (D.Kan.2003).

2. Administrative Remedies

Subsection (g) of § 13-5 states that if the permit is modified or denied, the applicant may appeal to the city council within five days. The doctrine of exhaustion provides that "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Gonzalez v. Ritz Carlton Hotel Co. of Puerto Rico, 241 F.Supp.2d 142, 144 (D.P.R.2003). The exhaustion doctrine, though mostly applied to state and federal legislation, is applicable to municipal ordinances. See, e.g., Euge v. Trantina, 298 F.Supp. 873 (D.C.Mo.1969). However, where the attack on the statute or regulation is purely constitutional, as it is here, the exhaustion of administrative remedies is not required. See Weinberger v. Salfi, 422 U.S. 749, 761-62, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). The Augusta City Council would not be in a position to rule on the constitutionality of its own ordinance. Id.; see also Minster v. Town of Gray, 584 A.2d 646, 648 (Me.1990) (citing Weinberger and finding that constitutionality of ordinance...