Whitton v. City of Gladstone, Mo.

• Decision Date: 17 September 1993
• Docket Number: No. 92-0848-CV-W-1.,92-0848-CV-W-1.
• Citation: 832 F. Supp. 1329
• Parties: Larry WHITTON, Plaintiff, v. The CITY OF GLADSTONE, MISSOURI, Defendant.
• Court: U.S. District Court — Western District of Missouri

832 F. Supp. 1329

Larry WHITTON, Plaintiff, v. The CITY OF GLADSTONE, MISSOURI, Defendant.

No. 92-0848-CV-W-1.

United States District Court, W.D. Missouri, W.D.

September 17, 1993.

W. Joseph Hatley, Cooperating Atty., ACLU of Kansas and Western MO, Overland Park, KS, and William C. Odle, Cooperating Atty., ACLU of Kansas and Western MO, Kansas City, MO, for plaintiff.

Linda Salfrank, Swanson, Midgley, Kansas City, MO, for defendant.

ORDER

WHIPPLE, District Judge.

There are cross motions for summary judgment before the court. The court will grant plaintiff's motion and deny defendant's motion for the reasons stated below.

I. Background

Plaintiff Larry Whitton asks this court to hold that certain provisions of the City of Gladstone's (Gladstone) Sign Ordinance violate the United States Constitution's First and Fourteenth Amendments. Whitton lives in Gladstone and also owns a business there. Whitton contends that the Sign Ordinance unconstitutionally hampers his ability to use his residential and commercial property in running and assisting others in running for political office.

Whitton's original complaint challenged the constitutionality of the Sign Ordinance's (1) fifteen-day durational limitation on the posting of political signs prior to an election; (2) five-day removal requirement of political signs after an election; (3) regulation of the number of political signs that could be placed in each residential or commercial lot and (4) regulation of external illumination of political signs. Whitton, at the same time he filed the complaint, also asked the court for a Temporary Restraining Order (TRO) and a Preliminary Injunction to allow him to post political signs that promote his candidacy for sheriff of Gladstone in violation of the Sign Ordinance.

The day before the court held a hearing on the TRO and the Preliminary Injunction, Gladstone repealed the Sign Ordinance and enacted a new one. The New Sign Ordinance removes the provision which limited the placement of all political signs¹ to one sign per candidate or issue per residential or commercial lot, restricts the total allowable square footage sign space per lot, extends the pre-election posting of signs from fifteen days to thirty days, extends the removal requirement from five to seven days and adds a section explaining the legislative purpose of the New Sign Ordinance. The New Sign Ordinance does not differ from the previous ordinance in any other respect. The court, at the TRO and Preliminary Injunction hearing, ruled in Gladstone's favor finding that Whitton failed to show he would suffer irreparable harm if the city enforced the New Sign Ordinance.

Whitton now challenges the constitutionality of §§ 25-45, 25-46 and 25-47(b) of the New Sign Ordinance. Although the election is over, Whitton states that he plans to run for other offices in the future.² The relevant part of § 25-45 prohibits a residential or commercial owner from placing a political sign on his or her property more than thirty days before an election to which the sign pertains.³ The section also requires that the sign be removed within seven days after the election. Section 25-47(b) makes the owner of the property, the candidate and the chairperson of a political committee responsible for removing the signs. Section 25-46 prohibits the illumination of all political signs.

II. Motion for Summary Judgment

A. Summary Judgment Standard

A movant is entitled to summary judgment under Fed.R.Civ.P. 56(c), "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Thus, the moving party bears the burden of proof. Aetna Life Ins. Co. v. Great Nat'l Corp., 818 F.2d 19, 20 (8th Cir.1987). When considering a motion for summary judgment, the court must scrutinize the evidence in the light most favorable to the non-moving party and the non-moving party "must be given the benefit of all reasonable inferences." Mirax Chem. Prods. Corp. v. First Interstate Commercial Corp., 950 F.2d 566, 569 (8th Cir.1991) (citation omitted). If the moving party meets its burden of proof, the burden shifts to the nonmoving party who must set forth specific facts showing that there is a genuine issue for trial to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202, 211-12 (1986).

The two requirements of Rule 56(c) are that there be (1) no genuine issue of (2) material fact. The United States Supreme Court explains that to establish a genuine issue of fact sufficient to warrant trial, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986). If a rational trier of fact considering the record as a whole could not find in favor of the nonmoving party, then a trial is unnecessary. Id. Substantive law identifies which facts are material. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, 91 L.Ed.2d at 211. In assessing whether a material fact is subject to a genuine dispute, a court should employ a standard essentially identical to that governing a motion for directed verdict under Rule 50(a). Id., at 250, 106 S.Ct. at 2511, 91 L.Ed.2d at 213.

Finally, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court concluded by encouraging the use of summary judgment in appropriate cases: "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Id., at 327, 106 S.Ct. at 2554, 91 L.Ed.2d at 276 (citations omitted). See also, City of Mt. Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir.1988) ("The motion for summary judgment can be a tool of great utility in removing factually insubstantial cases from crowded dockets, free courts' trial time for those cases that really do raise genuine issues of material fact."). However, a court should always be mindful that summary judgment is an extreme remedy. Inland Oil & Transp. Co. v. United States, 600 F.2d 725, 727 (8th Cir.), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979).

The parties agree that there are no genuine issues of material fact for a trier of fact to resolve. The present case is thus an appropriate one for the court to decide on a motion for summary judgment.

B. Durational Limitations and Removal Requirements

"Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend. I. The Fourteenth Amendment, of course, secures the freedom of speech against states as well. Burson v. Freeman, 504 U.S. ___, ___, 112 S.Ct. 1846, 1849-50, 119 L.Ed.2d 5, 12 (1992).

Section 25-45 of the New Sign Ordinance prohibits a residential or commercial owner from placing a political sign on his or her property more than thirty days before an election to which the sign pertains and requires the sign be removed within seven days of the election. Section 25-45, in essence, constitutes a complete ban on posting political signs which is temporarily lifted thirty days before an election and reinstated after an election takes place. City of Antioch v. Candidates' Outdoor Graphic Serv., 557 F.Supp. 52, 55 (N.D.Cal.1982). The posting of political signs constitutes speech. Arlington County Republican Comm. v. Arlington County, 983 F.2d 587, 593-94 (4th Cir.1993); Baldwin v. Redwood City, 540 F.2d 1360, 1366 (9th Cir.1976), cert denied, 431 U.S. 913, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). Section 25-45 burdens speech, thus the next issue is which test the court should use in analyzing the constitutionality of § 25-45.

1. The Appropriate Test for Analyzing Section 25-45

Gladstone argues that the appropriate test for analyzing the constitutionality of § 25-45 is the time, place and manner test. A time, place or manner test is appropriate if the restrictions are "justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221, 227 (1984).

The court cannot use the time, place and manner test in analyzing the thirty-day durational limitation and the seven-day removal requirement if Gladstone regulates speech on the basis of its content. A plurality of the Supreme Court in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), articulated two tests it uses to determine if a restriction is content-based. Although the Supreme Court was sharply divided, it did not divide on the issue of what constitutes a content-based regulation. The first test is whether Gladstone gives commercial speech a greater degree of protection than noncommercial speech. If it does then the New Sign Ordinance is content-based and the court cannot analyze the thirty-day durational limitation and the seven-day removal requirement under a time, place and manner standard. Id., at 513, 101 S.Ct. at 2895, 69 L.Ed.2d at 818. The second test is whether the section "distinguishes ... between permissible and impermissible signs ... by reference to their content." Id., at 516, 101 S.Ct. at 2897, 69 L.Ed.2d at 820.

Section 25-45 fails both tests and is thus, not...