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Clark v. City of Williamsburg

United States District Court, D. Kansas

May 9, 2019

ERIC S. CLARK, PLAINTIFF,
v.
THE CITY OF WILLIAMSBURG, KANSAS, DEFENDANT.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE

         Plaintiff Eric Clark brings this action under 42 U.S.C. § 1983 alleging Defendant City of Williamsburg, Kansas (“City”) violated his constitutional rights under the First and Fourth Amendments.[1] He also brings an inverse condemnation action under Kansas state law. Doc. 55 at 14. This case stems from a violation notice the City sent Clark regarding signs at the edge of Clark's property. Both parties have filed summary-judgment motions as to all claims. Doc. 78; Doc. 91.

         As to Clark's First Amendment claim, the Court finds that Article 8, § 4.A. (6) is an unconstitutional content-based restriction and, therefore, grants Clark summary judgment on that count. That provision is severable from the remainder of the City's sign ordinance, which the Court does not evaluate because Clark lacks standing to make that challenge. The Court grants summary judgment to the City on Clark's Fourth Amendment claim (because there was no search of Clark's property), and on Clark's inverse-condemnation claim (because Clark has not established any taking).

         I. BACKGROUND

         On February 23, 2015, the City's code enforcement officer, Tony De La Torre, sent Clark a “NOTICE OF VIOLATION” of the City's sign ordinance. Doc. 79 at 4; Doc. 92-22 at 2. The violation notice stated that Clark was in violation of the City's sign ordinance because he had “three large barrels, several signs, and other affixed objects” on the City's “right of way.” Doc. 92 at 18. According to the violation notice, the items Clark needed to remove were located within the City's eighty-foot easement. Id. The violation notice requested Clark's voluntary cooperation, but it also informed him a citation could be issued and the items removed if he did not comply. Doc. 92 at 5-6; Doc. 100 at 4; Doc. 92-22 at 2. The violation notice directed Clark to immediately contact the City by phone if he had any questions or believed he received the notice in error; otherwise, “actions will continue toward resolution.” Doc. 92-22 at 2. Clark did not call. Doc. 100 at 27.

         On March 16, 2015, De La Torre went to Clark's property to discuss the matter. Doc. 79 at 10-11; Doc. 92 at 12. Clark's house sits back from the road and has a gravel driveway on one side that extends from the road to the back of the house, where it widens into a gravel apron or parking area. Doc. 92 at 14. On the day De La Torre went to Clark's property, there were no “No Trespass” signs posted. Id. Clark seldom uses the front door of his house and has trained his family members to go to the back door when they visit. Id. at 15. The front door, which has no doorbell, is accessed by a front porch with steps up the front. Id. at 15-16. There is no sidewalk or worn path to the front porch, and certain items on the porch partially blocked the entrance, or at least would have required a visitor to squeeze by them to get to the door. Id. A tarp was hung up along the north side of the porch. Id. at 15. Vegetation covered at least some of the entrance to the front porch. Id. At his deposition, Clark was asked, “Would you agree that it doesn't look like an invitation to the front door with those things sitting in front of it?” Clark answered, “I would hope so, but I can't really say that nobody would be deterred from going up there.” Id.; Doc. 100 at 18.

         On March 16, 2015, De La Torre parked near the road. He walked up the driveway and saw that there was no path to the front door and that the door itself was blocked by items on the porch. He then heard someone in the back and started walking that way on the driveway. Doc. 92 at 16-17; Doc. 100 at 19-20. De La Torre then encountered Clark, who got angry and told De La Torre to leave several times in the span of less than a minute. Doc. 92 at 17. Clark then went back into the house and De La Torre left. Doc. 92 at 16; Doc. 100 at 19. De La Torre believes he only proceeded half-way to three-quarters up the driveway and did not leave the driveway or gravel apron/parking area near the back of the house. Doc. 92 at 17; Doc. 100 at 20-21. De La Torre estimates he was on Clark's property for 3-4 minutes; Clark claims it was 5-6 minutes. Doc. 92 at 16; Doc. 100 at 19.

         Though Clark did not call the City or discuss the violation notice with De La Torre when he went to Clark's property, Clark did send the City some letters in response. Doc. 100 at 22; Doc. 92 at 18-19. Clark disputed that he was in violation of any sign ordinance provision and asserted that the sign ordinance was unconstitutional. Doc. 100 at 22; Doc. 92 at 18-19. In one of those letters, which was labeled a litigation notice, Clark stated that he was fearful of putting up any new objects until the enforcement threat was removed. Doc. 79 at 5; Doc. 92 at 18-19.

         The City has never affirmatively retracted the violation notice. Doc. 79 at 4; Doc. 92 at 10. But after receiving the litigation notice, the mayor spoke with the City's attorney, who advised the City to not continue investigating Clark's alleged violations of the sign ordinance “further.” Doc. 92 at 19; Doc. 100 at 22. The mayor discussed the issue with the city council, and the city council agreed to that course. Doc. 92 at 19; Doc. 100 at 22. De La Torre's notes state that the City decided not to take any action on the violation notice “at this time.” Doc. 100 at 22; Doc. 79-2 at 23. Four months later, the City suspended its code enforcement officer position due to budget constraints and has had no code enforcement officer since that time. Doc. 79 at 6; Doc. 92 at 19. Clark was aware that the City suspended the position. Doc. 92 at 17. The City also did not reappoint a judge for the City's municipal court and no judge has held a municipal judicial proceeding in the City since May 2016. Doc. 92 at 19; Doc. 100 at 23. The City has indicated that it will not enforce the sign ordinance against Clark or any one else “during the pendency of this case.” Doc. 92 at 19.

         II. STANDARD

         Both parties have filed separate motions for summary judgment. Summary judgment is appropriate if the record establishes that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party bears the initial burden of establishing the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate that genuine issues remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To carry this burden, the nonmovant “may not rely merely on . . . its own pleadings.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal quotations and citations omitted). “Rather, it must come forward with facts supported by competent evidence.” Id. The inquiry turns on “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251- 52. In applying this standard, courts must view the evidence and all reasonable inferences from it in the light most favorable to the nonmovant. Matsushita, 475 U.S. at 587.

         III. ANALYSIS

         Clark has asserted three claims in this case. Count I and Count II arise under the Constitution and are brought pursuant to 42 U.S.C. § 1983. They allege, respectively, violations of the First and Fourth Amendments. The third count-for inverse condemnation-is brought under Kansas state law. Doc. 55 at 14-15. Each is discussed in turn.[2]

         A.Clark's First Amendment Allegations (Count I)

         A complicating factor in analyzing Clark's First Amendment claim is that the parties disagree on the scope of this case. Clark asserts a broad challenge to several provisions of the City's sign ordinance, rather than focusing on the February 23, 2015 violation notice. Doc. 79 at 44-79. By contrast, the City disputes that Clark has standing to challenge any provisions of the City's sign ordinance. Doc. 92 at 27-32. But to the extent Clark does have standing, the City limits its analysis to whether the City is entitled to prohibit signs on public property.[3] According to the City, the “February 23, 2015 Notice of Violation addressed only Article 8, § 5 of the City sign regulations.” Doc. 92 at 33.

         The Court agrees with the City that Clark lacks standing to challenge most provisions in the sign ordinance, as discussed below. But the Court disagrees with the City about what provision is at issue. The violation notice does not cite any specific provision in the sign ordinance by number, let alone Article 8, § 5. But it did allege that, “[u]nder the City of Williamsburg's Ordinance, political signs shall not be placed on or otherwise affixed to any public building or sign, right of way, sidewalks, utility pole, street lamp post, tree, or other vegetative matter, Public Park, or other public property.” Doc. 99-22 at 2. That recites nearly verbatim Article 8, § 4.A. (6). Article 8, § 5 is not quoted, paraphrased, or mentioned. Accordingly, to the extent a specific provision is at issue, it is Article 8, § 4.A. (6)-not Article 8, § 5.[4]

         Clark's reply clarifies that his standing for a First Amendment challenge is based both on the threatened enforcement action, “as well as the ordinance's prohibitions which stand as prior restraints.” Doc. 100 at 37-38. Accordingly, the Court must evaluate Clark's standing to challenge the enforcement action (involving Article 8, § 4.A. (6)), and his broader challenge to other provisions in the sign ordinance. Those are two different claims, and each must be analyzed for standing separately.

         1.Clark suffered an injury-in-fact through issuance of the of the violation notice and may challenge the constitutionality of Article 8, § 4.A. (6).

         Under Article III of the Constitution, there must be a case or controversy before federal courts have jurisdiction. Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003). “To meet this standing requirement, a plaintiff must demonstrate ‘that (1) he or she has suffered an injury in fact; (2) there is a causal connection between the injury and the conduct complained of; and (3) it is likely that the injury will be redressed by a favorable decision.'” Id. (quoting Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997)); see also Nat'l Council for Improved Health v. Shalala, 122 F.3d 878, 881 (10th Cir. 1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

         To show an injury-in-fact, a plaintiff must demonstrate “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1087 (10th Cir. 2006) (quoting Lujan, 504 U.S. at 560). “Although ‘imminence' is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes-that the injury is ‘certainly impending.'” Lujan, 504 U.S. at 564 n.2 (internal quotations omitted).[5]

         On February 23, 2015, the City sent a “NOTICE OF VIOLATION” to Clark, which stated that the City's code enforcement officer had observed “three large barrels, several signs, and other affixed objects located on the City's right of way” in front of Clark's house. It recited nearly verbatim the language of Article 8, § 4.A. (6) and asked for Clark's “cooperation in correcting all the violations.” The violation notice indicated a re-inspection would occur at a later date, and “[i]f the violations are not corrected a citation may be issued and objects removed from the City easement.” Doc. 92-22 at 2. Clark never removed the items, and instead sent some letters to the City threatening legal action. As a result, the City opted to not pursue the matter further, or at least “at this time.” The City has never affirmatively retracted the violation notice. Doc. 79 at 4; Doc. 92 at 10. In its summary-judgment motion, the City has stated that it has no plans to enforce its sign ordinance against Clark or any other citizens “during the pendency of this case.” Doc. 92 at 19.

         Under these standards, the Court concludes that Clark has suffered an injury-in-fact concrete enough to confer standing to challenge Article 8, § 4.A. (6). Clark was sent a letter titled “NOTICE OF VIOLATION.” The City is correct that the letter did ask for Clark's voluntary compliance. But compliance was voluntary only to the extent that, if Clark did not comply, “a citation may be issued and objects removed from the City easement.” Doc. 92-22 at 2. Although the City has stopped pursuing the matter at least for the time being (after Clark threatened litigation), Doc. 92 at 18-19, that decision is not permanent, nor has the City rescinded the violation notice. Doc. 79 at 4-5; Doc. 92 at 10; Doc. 100 at 22; Doc. 79-2 at 23 (stating that the matter would not be pursued “at this time”).

         The Court concludes that Clark has asserted sufficient grounds to confer standing. He was effectively cited for violating Article 8, § 4.A. (6), and his only option was to acquiesce or face further action. To the extent the City does not intend to ever follow up on the violation notice or pursue the matter, it has been somewhat vague as to the duration of that resolve, leaving Clark in limbo regarding his posting of signs-and in particular, political signs-on his property. See Doc. 79 at 4-5; Doc. 92 at 10, 19; Doc. 100 at 22; Doc. 79-2 at 23.[6] The Tenth Circuit has stated that, though an injury must be impending, a plaintiff “need not ‘await the consummation of threatened injury.'” Essence, Inc. v. City of Federal Heights, 285 F.3d 1272, 1282 (10th Cir. 2002) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). Here, Clark has been threatened with enforcement under the sign ordinance. A “chilling effect on the exercise of a plaintiff's First Amendment rights may amount to a judicially cognizable injury in fact, as long as it ‘arise[s] from an objectively justified fear of real consequences.'” Initiative & Referendum Inst., 450 F.3d at 1088 (quoting D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004)). The “mere threat of prosecution under the allegedly unlawful statute” can establish that chilling effect. See Phelps, 122 F.3d at 1326. Clark does assert a chilling effect as to Article 8, § 4.A. (6), Doc. 79 at 3, and given the violation notice, that chilling is at the very least “objectively justified.” Accordingly, Clark has standing to challenge the provision at issue in the violation notice-Article 8, § 4.A. (6).

         2.Clark lacks standing to challenge other provisions.

         Although Clark has standing to challenge the provision of the sign ordinance whose language was recited nearly verbatim in the violation notice (Article 8, § 4.A. (6)), that does not mean Clark has standing to challenge the entirety of the City's sign ordinance, as he attempts to do. As explained above, the City sent Clark a violation notice that recited the language in Article 8, § 4.A. (6). Doc. 92-22 at 2. The City never sent any notice regarding other provisions. Accordingly, Clark only has standing to challenge Article 8, § 4.A. (6). See Quinly v. City of Prairie Village, 446 F.Supp.2d 1233, 1235 n.1 (D. Kan. 2006) (concluding that the plaintiff lacked standing to challenge other provisions of sign ordinance where plaintiff did not demonstrate any injury resulting from those other provisions); see also Essence, 285 F.3d at 1281-82.

         Perhaps recognizing this shortcoming in his case, Clark categorizes his other challenges as “prior restraint” claims and suggests that he is raising an overbreadth challenge to essentially all of the provisions in Article 8. Doc. 79 at 52-53; Doc. 100 at 38-39.[7] But being “prospectively inhibited” is just a “hypothetical injury and not a concrete injury.” Essence, 285 F.3d at 1281. Similarly, merely couching the challenge of those other provisions in terms of an overbreadth challenge does not in of itself confer standing. Nat'l Council, 122 F.3d at 882 (“Although the overbreadth doctrine permits a party to challenge a statute or regulation that has not been unconstitutionally applied to that party, it does not dispense with the requirement that the party itself suffer a justiciable injury.”). An overbreadth challenger must still “show its own concrete injury resulting from the challenged statute or regulation.” Id. at 881. Requiring a plaintiff to assert his own legal rights in an overbreadth challenge “prevents a court from ‘premature interpretations of statutes in areas where their constitutional application might be cloudy, and it assures the court that the issues before it will be concrete and sharply presented.'” Id. at 883 n.7 (quoting Sec'y of State v. Munson, 467 U.S. 947, 955 (1984)).

         Clark also alleges an injury-in-fact as to the other provisions based on a chilling of his First Amendment expression. Doc. 79 at 53 (stating that “the City's regulations prohibit, through a chilling effect, the ability of Clark to express himself freely on certain topics at certain times, in certain manners, and in certain places”). As noted above, First Amendment standing may be demonstrated by a showing that a statute has had a chilling effect on a person's speech. See Ward, 321 F.3d at 1267. But the only chilling Clark has alleged is in regard to prohibitions and regulations of political signs found in Article 8, § 4.A. (6). See Doc. 79 at 3 (¶ 10 and ¶ 12, both challenging Article 8, § 4.A. (6)).[8] Accordingly, Clark has not alleged any chilling that could serve as an injury-in-fact to grant him standing to challenge other provisions.

         Even if he did allege a chilling as to those other regulations, subjective chilling is not enough. Ward, 321 F.3d at 1267. Rather, the “chilling effect on the exercise of a plaintiff's First Amendment rights may amount to a judicially cognizable injury in fact, as long as it ‘arise[s] from an objectively justified fear of real consequences.'” Initiative & Referendum Inst., 450 F.3d at 1088 (quoting D.L.S., 374 F.3d at 975). Although Clark can meet that standard as to Article 8, § 4.A. (6) because of the violation notice, all Clark has to challenge the other provisions of the sign ordinance is a conclusory claim that he has been chilled. This is insufficient to raise a judicially cognizable injury-in-fact. See Nat'l Council, 122 F.3d at 884 n.9 (“An allegation of inhibition of speech, without more, will not support standing.”).

         Accordingly, although Clark has standing to challenge Article 8, § 4.A. (6), he lacks standing to challenge other provisions in the sign ordinance. The Court will therefore only evaluate the constitutionality of that provision.

         3. Article 8, § 4.A. (6) is a content-based regulation that does not pass strict scrutiny.

         As explained above, Article 8, § 4.A. (6) is the provision referenced in the violation notice.

         That provision states:

Political signs, not exceeding a total of 20 square feet in area on a lot of record zoned for non-residential purposes, or which is vacant and unplatted, regardless of the zoning district classification; and not exceeding a total of ten (10) square feet on a lot of record in a residential zone district. Political signs shall be displayed for no more than a four-week period preceding and a one-week period following an election. Political signs shall not be placed on or otherwise affixed to any public building or sign, ...

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