SULLIVAN v. CITY OF AUGUSTA

310 F.Supp.2d 348 (2004) | Cited 3 times | D. Maine | March 19, 2004

ORDER REGARDING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER

True to its name, the March for Truth Coalition (Coalition) intendsto march. Organized in January 2004, the Coalition has planned ademonstration in Augusta, Maine on Saturday, March 20, 2004, to advocate"worldwide end of war and empire-building, greater honesty and opennessin domestic government, affordable health care, veterans' rights andbenefits, and living wage jobs." The Coalition intends start itsdemonstration at the Maine State Capitol building, march through theAugusta city streets, and end with a rally back at the Capitol. To marchon city streets, however, the Coalition needs and has applied for aparade permit from the City of Augusta (City). The City is willing toissue a permit but has conditioned its issuance on the Coalition'spayment of traffic control and cleanup costs and the furnishing of a bondor other surety for potential damage. Claiming the City's conditionsconstitute an unconstitutional burden on its exercise of First Amendmentrights, Timothy Sullivan (Sullivan), a Coalition organizer, has filedsuit against the City, seeking a temporary restraining order enjoiningthe CityPage 2against imposing these conditions. This Court concludes the City'sbond requirement delegates excessive discretion to the Augusta Chief ofits Police Department (Police Chiefjand, therefore, GRANTS the Motion forTemporary Restraining Order on the bond requirement. For all otherpurposes, however, this Court concludes the Augusta parade ordinancepasses constitutional muster and therefore, DENIES the Coalition's motionin all other respects.

I. Factual Background

A. The Ordinance.

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

Once the application is filed, the ordinance requires the applicant tomeet with the Police Chief within ten days "to agree on the details ofthe route and other logistics." § 13-5(c). The Police Chief may deny thepermit, alter its route for "traffic or safety reasons," or impose"reasonable conditions, including . . . time limits, requirement to keepmoving and on route, no amplification or sound truck, no explosives,fireworks or other artificial noise." § 13-5(d). The Police Departmentcalculates 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 applicablestatePage 3and local law or regulation, and payment . . . of all proper claimsagainst the applicant for damage to real or personal property . . .arising out of acts done or omitted to be done by the applicant, hisagents or employees." § 13-5(f).1 Once the Police Department makesthese determinations, it informs the applicant. Any additional costs mustbe paid and evidence of bond or insurance must be presented before thepermit is issued. § 13-5(e), (f). An applicant who has been denied apermit or whose permit has been modified may appeal to the city councilwithin five days of the denial or modification. § 13-5(g).

B. The Application.

On February 9, 2004, on behalf of the Coalition, Sullivan formallyapplied for an "Application for Parade Permit" with the City PoliceDepartment, proposing three parade routes. The permit stated that theparade 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 ChiefMajor Gregoire (Gregoire) determined the first approved route wouldrequire twelve officers and two police vehicles for traffic control,costing $2,077.44. Gregiore determined the second approved route wouldrequire ten officers and two police vehicles costing $1,761.20.3 Inlater discussions, Gregoire approved a third route, costing $1,543.08. Incalculating 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 thePage 4parade." Gregoire Affidavit at 5. The Gregoire's concern is "trafficcontrol and direction." Id. In fixing this fee, Gregoire did not considerthe costs of ensuring the safety of the marchers or anycounter-protests. If there is any such concern, these factors would havebeen considered separately and not assessed under the parade ordinance.Id. at 6.

Gregoire also determined the Coalition would be required to furnish abond of surety in the amount of $10,000.00 or evidence of appropriateinsurance. Sullivan estimated event insurance would cost approximately$450. Currently, the Coalition claims it has assets of only $1,365, heldin 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 onthe 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 FirstAmendment right is involved, irreparable injury is presumed.Westinghouse, 409 F. Supp. at 896. (noting "any significant denigrationof a First Amendment right constitutes irreparable harm"); Borreca v.Fasi, 369 F. Supp. 906, 911 (D. Haw. 1974) (citing Quaker Action Groupv. Hickel, 421 F.2d 1111 (D.C. Cir. 1969)). Although Sullivan mustdemonstrate he has met his burden with respect to the request forpreliminary injunctive relief, the burden of demonstrating theconstitutionality of the ordinance lies with the City.Page 5

B. Preliminary Matters.

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

1. Standing" 4

Article III of the Constitution limits the jurisdiction of federalcourts to actual cases or controversies. Becker v. Federal ElectionComm'n, 230 F.3d 381, 384 (1st Cir. 2000). To establish standing, theplaintiff bears the burden of satisfying three prerequisites: (1) aninjury-in-fact; (2) a causal connection between the injury and the conductcomplained of; and (3) a "likelihood" the injury can be redressed by thecourt. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992);Skrizowski v. United States, 292 F. Supp.2d 277, 280 (D.N.H. 2003); seealso Sierra Club v. Morton, 405 U.S. 727, 740 (1970) (rejecting thegrounds of "public interest" for standing).

The factual requirements to establish standing vary depending on thestage of proceedings. Lujan, 504 U.S. at 561. At the pleading stage,general factual allegations of injury resulting from the defendant'sconduct may suffice. Id. Where prospective relief,Page 6such as a restraining order, is sought, the plaintiff need only allegefacts that the injury is certainly impending, such as "a sufficientlikelihood that he will again be wronged." Skrizowski, 292 F. Supp.2d at280 (emphasis added); not an "injury-in-fact."

With respect to § 13-5, Sullivan has established standing. As anorganizer of the march and a participant, Sullivan has established thathe will suffer an "injury in fact," since the conditions of the City'spermit will affect him "in a personal and individual way." Lujan, 504U.S. at 560. Further, he has demonstrated a clear causal connectionbetween the injury and the ordinance. Finally, there is a likelihood thisCourt 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 ordenied, the applicant may appeal to the city council within five days.The doctrine of exhaustion provides that "no one is entitled to judicialrelief for a supposed or threatened injury until the prescribedadministrative remedy has been exhausted." Gonzalez v. Ritz Carlton HotelCo. of Puerto Rico, 241 F. Supp.2d 142, 144 (D.P.R. 2003). The exhaustiondoctrine, though mostly applied to state and federal legislation, isapplicable to municipal ordinances. See, e.g., Euge v. Trantina,298 F. Supp. 873 (D.C. Mo. 1969). However, where the attack on thestatute or regulation is purely constitutional, as it is here, theexhaustion of administrative remedies is not required. See Weinberger v.Salfi, 422 U.S. 749, 761-62 (1975). The Augusta City Council would not bein 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) (citingWeinberger and finding that constitutionality of ordinance may not be"determined by the town agency that issues building permits"). Moreover,itPage 7is unclear whether the appeal provision is applicable, because there isno evidence the City denied or modified the permit as required by §13-5(g). Sullivan challenges the constitutionality of the application ofthe ordinance, not the denial of a permit.

C. Likelihood of Success of the Merits.

The First Amendment provides that "Congress shall make no law . . .abridging the freedom of speech, or of the press; or the right of peoplepeaceable to assemble, and to petition the Government for a redress ofgrievances." U.S. Const. amend. I. Public speaking, parades, orassemblies fall within "the archetype of a traditional public forum."Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992) (quotingFrisby v. Schultz, 487 U.S. 474, 480 (1988)); Gregory v. Chicago,394 U.S. 111, 112 (1969); Hurley v. Irish-American Gay, Lesbian &Bisexual Group of Boston, 515 U.S. 557, 568 (1995); see also Casey v. Cityof Newport, 308 F.3d 106, 111 (1st Cir. 2002). Requiring a permit and feefor such activity constitutes a prior restraint on speech. ForsythCounty, 505 U.S. at 130.

Despite the heavy presumption against the constitutional validity of aprior restraint on free speech, permit requirements applied to parades orother uses of public forums have been held to be valid, provided suchschemes meet strict constitutional requirements. Cox v. New Hampshire,312 U.S. 569, 574-6 (1941). To withstand constitutional challenge, thepermit requirements may not delegate overly broad licensing discretion toa government official. In the words of the Forsyth County Court, thedecision how much to charge or even whether to charge at all cannot beleft "to the whim of the administrator." Forsyth County, 505 U.S. at133. The standards for approval, denial or the imposition of conditionsmust be "narrowly drawn, reasonable, andPage 8definite." Id. at 324; Niemotko v. Maryland, 340 U.S. 268, 282 (1951). Thetime, place, and manner of speech may not be based upon the content ofthe message; the scheme must be narrowly tailored to serve a significantgovernmental interest; and "ample alternatives for communication" must beleft open. Forsyth County v. Nationalist Movement, 505 U.S. 123, 130(1992). Such content-neutral restrictions — often referred to as "time,place, manner" restrictions — must contain adequate standards to guide anagency's decision, and the decision which must be subject to effectivejudicial review. Thomas v. Chicago Park Dist., 534 U.S. 316, 324 (2002).

Sullivan challenges § 13-5 on its face as violative of his FirstAmendment right to free speech. This Court considers first therequirements of the application fee and costs of retaining lawenforcement services. § 13-5(d), (e). In Cox v. New Hampshire, the UnitedStates Supreme Court held that fees related to "the expense incident tothe administration of the [event] and to the maintenance of public orderin the matter licensed" are not unconstitutional. Cox, 312 U.S. at 577.There is no evidence on the record the application fee is anything butadministrative. The imposition of these costs is mandatory, notdiscretionary. § 13-5(e) ("The cost of the permit shall be $100, plus thecosts of traffic control . . . and cleanup costs.") (emphasis added). Tothe contrary, the record establishes that the police fee is simply amathematical computation based on the Police Chief's assessment of thepolice presence necessitated by the parade route. Sullivan does notcontend the City does not have an important interest in maintainingpublic order. Therefore, with respect to subsections (d) and (e) of §13-5, the City has met its threshold burden: these portions of theordinance are constitutional as applied.Page 9

The Court now turns to the constitutionality of the bond and/or eventinsurance requirement. § 13-5(f). In Freedman v. Maryland, the SupremeCourt recognized the "peculiar dangers" imposed on otherwiseconstitutionally protected speech when a licensing body's prior approvalof the content is contingent upon the issuance of the license. 380 U.S. 51,57 (1965). The Freedman Court noted that a licensing board would likelyoverestimate perceived dangers of controversial speech. Id. at 52-53,n.2. It is "the censor's business is to censor," the Court wrote. Id. at57. The Freedman Court held that "(1) any restraint prior to judicialreview can be imposed only for a specified brief period during which thestatus quo must be maintained; (2) expeditious judicial review of thatdecision must be available; and (3) the censor must bear the burden ofgoing to court to suppress the speech and must bear the burden of proofonce in court." Thomas, 534 U.S. 316, 321 (2002) (citing FW/PBS, Inc. v.Dallas, 493 U.S. 215, 227 (1990)).

More recently, in Thomas v. Chicago Park District, the Supreme Courtexpounded on the reach of Freedman'$ procedural requirements to freespeech: it held that Freedman did not apply to permit schemes which areboth limited to public safety concerns and void any consideration ofcontent of speech. 534 U.S. at 322 (noting Court has "never required thata content-neutral permit scheme regulating speech in a public forumadhere to the procedural requirements set forth in Freedman"). In sodoing, the Thomas Court also reaffirmed the pertinence of the ForsythCounty and its progeny, stating:

even content-neutral time, place, and manner restrictions can be applied in such a manner as to stifle free expression. Where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based on its content.Page 10

Thomas, 534 U.S. 324 (citing Forsyth County, 505 U.S. at 131); see alsoNew England Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 21 (1stCir. 2002).

In the instant case, subsection (f) bestows on the Police Chief theauthority to determine whether the applicant must post a surety bond atall and, if so, what the amount of the bond must be up to $10,000.00. Theordinance itself contains no standards whatsoever, much less "narrowlydrawn, reasonable and definite" standards, under which the Police Chiefis to make this determination. Forsyth County, 505 U.S. at 133. The FirstAmendment "prohibits the vesting of such unbridled discretion in agovernment official." Forsyth County, 505 U.S. at 133.

Nothing in subsection (f) or its application prevents the police chieffrom "encouraging some views and discouraging others through [its]arbitrary application . . . Id. It is difficult for this Court toenvision how the Augusta Police Chief will make the determination as towhether to require the bond or how much to require without making asubjective determination of the content of the applicant's speech, theestimate of the response of others, and the likelihood that theapplicant's members will cause or fail to prevent damage to real orpersonal property. It is this range of considerations that implicates theprotections of the First Amendment. Forsyth County, 505 U.S. at 134. It isnot enough for the City to assert that the Police Chief has not exercisedhis discretion in a content-based fashion; the question is "whether thereis anything in the ordinance preventing him from doing so." ForsythCounty, 505 U.S. at 133. Thus, the practical effect of this subsection iscontent-based discrimination. See, e.g., Invisible Empire of the Knightsof the Ku Klux Klan v. Town of Thurmont, 700 F. Supp. 281 (D. Md. 1988)(finding a requirement of insurance unconstitutional because it was basedon assessmentPage 11of content of speech). While the City's justification may besubstantially related to important government interest, it does notsubstantiate, nor satisfy a content-based assessment.5 Id. at 136.

The right to free speech is a fundamental right protected by the FirstAmendment. A government may not regulate speech based on its substantivecontent or the message it conveys. Rosenberger v. Rector & Visitors ofUniv. of Va., 515 U.S. 819, 828 (1995). Such content-based regulationsare subject to strict scrutiny and require the government to show thatthe challenged regulations are necessary to serve a compelling stateinterest and are narrowly drawn to achieve this end. Arkansas Writers'Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987). The City has failedto meet this burden. Because the bond and/or event insurance requirementrequires to some degree that the police chief assess the content of theproposed event, and because the ordinance fails to articulate thestandards by which such a determination of application may be made,subsection (f) is unconstitutional.

D. Severability.

A portion of a statute, regulation, or ordinance which is found to beunconstitutional may be severed so that the remainder of the law may beleft valid and enforceable. Alaska Airlines, Inc. v. Brock, 480 U.S. 678,684 (1987). In Alaska Airlines, the Supreme Court enunciated the wellestablished standard for determining the severability of anunconstitutional provision: "Unless it is evident that the Legislaturewould not have enacted those provisions which are within its power,independently of that which is not, the invalid part may be dropped ifwhat is left is fully operative as aPage 12law." Id. at 684 (citations omitted); Gilbert v. State, 505 A.2d 1326,1329 (Me. 1986) (discussing "longstanding common law rule ofseverability, which held that `where an unconstitutional and invalidportion of a statute is separable from and independent of a part which isvalid the former may be rejected and the later may stand'") (citationsomitted). Here, § 13-5 remains fully operative without subsection (f).The portions of the ordinance not classified as unconstitutional remainin effect.

E. Irreparable Harm.

As the Plaintiff's claim involves the deprivation of his FirstAmendment rights, irreparable harm is presumed. Westinghouse, 409 F.Supp. at 896; Borreca, 369 F. Supp. at911.

III. Conclusion

This Court GRANTS in part the Plaintiff's Motion for a TemporaryRestraining Order and the City is temporarily enjoined from enforcingsubsection (f). The remaining portions of § 13-5 may be enforced.

SO ORDERED.

1. The ordinance provides for three ways the applicant may complywith this requirement: (1) a bond of a surety company; (2) cash ornegotiable securities in lieu of the bond; or (3) evidence of appropriateinsurance. § 13-5(f).

2. Sullivan initially proposed three routes. The City PoliceDepartment denied the first proposed route citing public safety concernsover blocked access to the hospital near Memorial Bridge in the City.Proposed Routes Two and Three were approved. As noted, the applicantlater proposed a fourth route, which the City approved with the sameconditions, but at slightly less cost.

3. Note that neither city ordinance cited by the Verified Complaintapplies to the State House.

4. It is difficult to discern in what capacity Sullivan stands beforethis Court. Sullivan is the named plaintiff in the Verified Complaint andhe is self described as "an organizer of the March for Truth Coalition,an unincorporated association." "Vet, as the City notes in its response,there is "no allegation that he has brought this action on behalf of the[Coalition] or with authorization from the [Coalition], or what his levelof authority is, if any." (Docket No. 4, p. 4.). Sullivan's impreciseallegation is compounded by the parties' failure to agree on who theapplicant is. There is no clear indication whether Sullivan filed thepermit application in his individual capacity, as he suggested at oralargument, or in an agency capacity on behalf of the Coalition, as theCity suggested. The City argues that because Sullivan applied for thepermit as a representative of the Coalition, but then filed his VerifiedComplaint in his individual capacity, he was not subject to denial of thepermit and, therefore, has suffered no injury. Sullivan contends he filedthe application as an individual and subsequently filed in his individualcapacity as a plaintiff. Moreover, he contends he brings suit tochallenge the constitutionality of the ordinance, not the denial of aparade permit. Despite the Court's urging, none of this was clarified atoral argument. As a matter of policy, courts should construe pleadings liberally,giving weight to substance over form. Rodriguez v. Doral Mortgage Corp.,57 F.3d 1168, 1171 (1st Cir. 1995). Sullivan signed the permitapplication and has initiated the suit in his name only. Based on theallegations in the Complaint, this Court considers the Plaintiff to beSullivan in his capacity as an individual.

5. At oral argument, the City conceded that there is no evidence onthe record regarding the procedure used by the police chief's applicationof subsection (f), unlike that used by the chief in determining costs forsubsection (d).

Back to top