Driver v. Town of Richmond ex rel. Krugman

570 F.Supp.2d 269

Rodney D. DRIVER, Plaintiff, v. TOWN OF RICHMOND, by and through its Treasurer, David KRUGMAN, and Raymond A. Driscoll, in his individual and official capacities as Chief of Police of the Town of Richmond, Defendants.

C.A. No. 07-291S.

United States District Court, D. Rhode Island.

July 31, 2008.

COPYRIGHT MATERIAL OMITTED

Richard A. Sinapi, Sinapi Formisano & Coleman Ltd., Cranston, RI, for Plaintiff.

Joseph F. Penza, Jr., Olenn & Penza, Warwick, RI, for Defendants.

Rebecca Tedford Partington, Office of the Attorney General, Providence, RI, Amicus, State of Rhode Island.

DECISION AND ORDER

WILLIAM E. SMITH, District Judge.

In this action, Rodney D. Driver, a Rhode Islander, former professor and state legislator, and perennial candidate for the U.S. Congress, claims his First Amendment rights were violated by the Chief of Police of the small town of Richmond, Rhode Island, when his political signs were removed from their roadside locations. A hallmark of Driver's relatively low-budget campaigns has been reliance on the placement of campaign signs at busy public events. At various times in 2002 and 2006, Raymond A. Driscoll, the Chief of Police of the Town of Richmond, removed political signs posted by Driver adjacent to the Washington County Fair. Driver sued Driscoll as well as the Town, seeking declaratory and injunctive relief and monetary damages, and alleging violations of the First Amendment of the United States Constitution,¹, as well as Article 1, Section 21 of the Rhode Island Constitution.² Driver has moved for partial summary judgment as to liability on the ground that Rhode Island General Laws Section 11-22-2 ("Section 11-22-2") is unconstitutional on its face because it vests unbridled discretion in local authorities over whether to permit or deny expressive activity. Adopting a kind of rope-a-dope approach to this action (perhaps sensing the infirmity of their position), neither the Town nor Driscoll filed a timely opposition to Driver's motion³; however, the State of Rhode Island, which was allowed to intervene as amicus curiae, has stepped (or, perhaps more accurately, has been pushed) into the fray and filed a response to Driver's motion in order to defend the statute.

The Supreme Court made clear many years ago that "an ordinance which ... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official ... is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (quotation omitted). Subsection 3 of Section 11-22-2, on its face, operates as an unconstitutional prior restraint on speech because it grants the local Chief of Police (or his designee) unbridled discretion to approve or deny sign postings on even private property that overlaps with a public highway right of way. For this reason, Driver's motion for summary judgment is granted, and Section 11-22-2(3) is declared unconstitutional and unenforceable as set forth below.

I. Factual Background

The Court takes as true the facts proffered by Driver.⁴ Driver has on at least two occasions stood as a candidate for the U.S. Congress in the Second Congressional District of Rhode Island.⁵ During these campaigns, the owners of property located opposite the Washington County Fair Grounds authorized him to display a 2' X 4' sign advertising his candidacy during the Washington County Fair, which usually takes place during the third week of August. The sign was posted directly opposite the main entrance to the fair grounds, which was also the only point of entry or exit for motor vehicles.

In August 2002, Driscoll removed Driver's campaign sign on more than one occasion from its posted location. After Driver inquired about the removals, Driscoll claimed that Driver needed written permission from the owner to post signs on private property. Driver subsequently provided Driscoll with copies of the written authorization he had received from the property owners and re-posted the sign without further incident.

In August 2006, Driver again ran for the congressional seat, and posted a sign advertising his candidacy in the same location as in August 2002. Apparently, the sign was removed several times⁶, because after repeatedly replacing it, Driver left a message for Driscoll—presumably protesting the removal—at the Town Police Department. On August 18, 2006, Driscoll left Driver a voicemail message in which he acknowledged removing the sign and claimed that the sign was not permitted in the location it was posted. The sign had been posted at least 20 feet from the centerline and at least 6 feet from the paved edge of Route 112. After receiving Driscoll's message, Driver re-posted the sign on the same property but this time placed it at least 29 feet from the centerline and at least 14.5 feet from the paved edge of Route 112. Plaintiff also posted two new signs on the property, both of which were at least 20 feet from the centerline and 6 feet from the paved edge of Route 112. The next morning, once again, Driver's signs had been taken down by Driscoll or at Driscoll's instruction.

Undeterred, Driver again erected his sign at least 29 feet from the centerline of Route 112 and attached to it a note addressed to Driscoll which read: "This sign is on private property, well outside the highway right of way." This time, the sign was not taken down. Plaintiff subsequently commenced this action and now moves for partial summary judgment as to liability.

II. Standard of Review

Summary judgment is appropriately granted where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). In this case, the basic facts are not in dispute. Where there are no significant disagreements about the basic facts, a court may treat the parties as though they have submitted their dispute as a "case stated" and decide the case as a matter of law. See EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 (1st Cir.1995) (citing Federación De Empleados Del Tribunal Gen. De Justicia v. Torres, 747 F.2d 35, 36 (1st Cir.1984)).

III. Discussion

A.

Although neither Driver nor the State directly raised the issue, the Court has considered whether this dispute is moot to the point of being nonjusticiable. See North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) ("Although neither party has urged that this case is moot, resolution of the question is essential if federal courts are to function within their constitutional sphere of authority."). The Court is "not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong." Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). The fact of the matter is that Driver's campaigns have ended, at least for now.⁷ His campaigns over, the signs presumably would have been removed voluntarily long ago, regardless of Driscoll's predilections. See, e.g., Flynt v. Weinberger, 762 F.2d 134, 135 (D.C.Cir. 1985) (challenge to ban on press coverage declared moot when Grenada invasion ended). Nevertheless, this dispute raises issues that fall within the narrow exception to the mootness doctrine which allows litigation of cases that are "capable of repetition, yet evading review." Spencer, 523 U.S. at 17, 118 S.Ct. 978. This exception applies where: "(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Id. (alterations and citations omitted).

Disputes arising from political elections often fall within the "capable of repetition, yet evading review" exception "because the inherently brief duration of an election is almost invariably too short to enable full litigation on the merits." Caruso v. Yamhill County ex rel. County Com'r, 422 F.3d 848, 853 (9th Cir.2005) (quotation omitted); see also Center for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir.2006) (challenges to campaign finance regulations evade review because litigation cannot be completed before particular election has run its course); Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir.2005) (challenges to election laws are one of "quintessential categories" of cases satisfying "evading review" prong).

Moreover, Driver has asserted that, in future elections, he "may run for political office and would like and intends to erect and display political signs in the same location or similar locations adjacent to public highways within the Town to promote his candidacy ... [or] to communicate and express his support and belief in prospective political candidates." Compl. ¶¶ 26-27. Given Driver's prior history of maximizing his participation in the civic life of his community, the Court has little reason to doubt his expressed intention to seek office. But even if Driver chooses not to campaign for himself, he has proven regularly to be an outspoken advocate on several controversial topics, such as the conduct of U.S. foreign policy. See, e.g., Why Won't Our Leaders Stand Up to Confront Israel's Latest Round of Attacks on Civilians?, Westerly Sun, Aug. 1, 2006; Meeting the `Enemy' in a Brutalized Iraq, The Providence Journal, March 1, 2001; News Media Shield Us from the News, The Providence Journal, Feb. 18, 2000.⁸ And political speech, the most prized and protected form of expression under the Constitution, applies as much to candidacy as to advocacy.

In addition, the Town is of the view that the statute is constitutional on its face and that Driscoll committed no offense by removing Driver's signs. See Answer ¶¶ 50-52, 53, 55-58. This suggests that, should Driver again seek office or another candidate similarly post campaign...