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CURRY v. PRINCE GEORGE'S COUNTY

January 26, 1999

WAYNE K. CURRY, ET AL., PLAINTIFFS,
v.
PRINCE GEORGE'S COUNTY, MARYLAND, DEFENDANT.



The opinion of the court was delivered by: Messitte, District Judge.

OPINION

I.

An ordinance of Prince George's County, Maryland prohibits the posting of "campaign signs" more than 45 days before an election. The signs of an unsuccessful primary candidate must be removed within 10 days after the primary; those of a candidate successful in the primary who posted before the primary may remain up until 10 days following the general election. The ordinance requires, before the signs are posted, that a permit be obtained and a fee paid.

Wayne Curry, a former candidate for (and now) County Executive of the County, and Stella Grooms and Melvin V. Walker, Jr., private homeowners in the County, have challenged the constitutionality of the ordinance. They have sued the County, asking for injunctive and declaratory relief on the grounds that the ordinance violates their right to free speech under the First and Fourteenth Amendments to the U.S. Constitution. The County contends that the ordinance meets constitutional requirements.

The Court holds that on its face the ordinance, insofar as it imposes durational limitations on the posting of political campaign signs by individuals at their private residences, unconstitutionally impinges upon their First Amendment rights.

Accordingly, the Court will grant Plaintiffs' Motion for Summary Judgment and deny that of Defendant.*fn1

II.

The parties agree that there is no genuine issue of material fact and that summary judgment is appropriate. See Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III.

Section 27-628 of the Prince George's County Code, part of the County's zoning ordinance dealing with signs, reads:

Public interest events/campaign

(a) Location:

(1) At least 10 feet behind the street line; and

    (2) At least 50 feet from the nearest corner of any
      street intersection.

(b) Validity Period:

    (1) Campaign signs may be erected forty-five (45)
      days prior to the election. The sign shall be
      removed within ten (10) days after the general
      election, or within 10 days after the primary
      election if the candidate is not successful.
    (2) Other public interest signs may be erected for
      a period not to exceed 30 consecutive days.

(c) Other Regulations:

(1) One permit is required per applicant per event.

In addition to having to obtain a permit for each "event" as set forth in sub-section (c)(1), see also County Code § 27-596(a), persons wishing to post a campaign sign must, as part of the application, pay a fee.*fn2

When Plaintiff Curry commenced this suit he was a candidate for the Office of County Executive of Prince George's County and Plaintiffs Grooms and Walker were County homeowners who wished to post Curry campaign signs in the yards of their homes. When Grooms attempted to post a Curry sign on her property prior to the commencement of the permissible pre-election period, she was warned by County officials that she was in violation of the ordinance. While Walker posted no sign in advance of the allowable pre-election period, he expressed a desire to do so but held off because he was fearful of possible prosecution by the Prince George's County authorities. Sanctions might have included warning letters and fines. See County Code, § 27-609(a) and (c). Curry, as a candidate for office, claimed an interest in enabling supporters to post signs favorable to his candidacy on their property.*fn3

At the time suit was initiated, the ordinance limited the posting of campaign signs to a period beginning 20 days prior to the election in question and required their removal within 10 days after. On July 13, 1994, however, the Prince George's County Council amended Section 27-628(b)(1) to extend the pre-election period to 45 days. The amended ordinance was to go into effect on August 31, 1994, thirteen days before the primary election. Because the ordinance as amended would have no effect on Plaintiffs' ability to challenge the 20-day pre-election period in relation to the September 13, 1994 primary and because the amended ordinance failed to come to terms with the constitutional implications of time restrictions on the signs, Plaintiffs determined to press their claims in this lawsuit.

Accordingly, on July 15, 1994, the parties appeared before Judge Walter E. Black, Jr. of this Court in pursuit of a temporary restraining order ("TRO") with respect to the existing ordinance. Following a brief hearing in which he concluded that the pre-election durational limitation of the ordinance was of doubtful constitutionality, Judge Black issued a TRO enjoining the County from enforcing it. The election went forward and Curry, as it turned out, won both the primary and general elections.*fn4 From all that appears, the County has not strictly enforced the ordinance since that time. Nevertheless, given the continuing uncertain constitutionality of the ordinance and the desire of Plaintiffs to know when in fact they may place campaign signs on or about their residences with legal impunity, the Court has been asked to proceed and render its opinion.*fn5

IV.

Plaintiffs attack the ordinance on several grounds:*fn6

1) The ordinance, they say, is unconstitutionally vague and ambiguous in that it fails to define "campaign sign" and "event," requiring persons of ordinary intelligence to guess at its meaning in derogation of First Amendment rights.

2) The ordinance, on its face, unconstitutionally bans signs as a medium of political speech for all but 45 days before and 10 days after an election.

3) The ordinance fails both the content-based and content-neutral tests for evaluating governmental burdens on speech:

A) It is content-based because other sections of the zoning code favor commercial over noncommercial speech, permitting commercial signs, for example, to be posted for much longer periods, e.g. "for sale" signs may be posted for 6 month periods renewable for an additional 6 months whereas campaign signs may only be up 45 days before and 10 days after an election. Compare County Code, § 27-618(a)(2) and § 27-628. The ordinance is also content-based because it distinguishes between permissible and impermissible signs on the basis of the sign's content and subject matter. In either case, there is no compelling state interest justifying such discrimination.

B) Alternatively, say Plaintiffs, even if considered content-neutral, the ordinance is not narrowly tailored to further a substantial governmental interest and ample alternative means for communicating the desired message do not exist.

4) Requiring a private resident to obtain a permit and pay a fee before posting campaign signs imposes further undue burdens on the right to free speech.

The County denies that the ordinance is impermissibly vague, that it prefers commercial over non-commercial speech, or that it is content-based as opposed to content-neutral. It contends that its interests in aesthetics and traffic safety are substantial, that the durational restrictions are narrowly tailored to further those interests, and that ample alternative means in fact do exist for Plaintiffs to express their views. The County also asserts that a permit and fee requirements are not unduly burdensome. The County ...


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