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Padou v. District of Columbia

June 17, 2010

ABIGAIL PADOU, ET AL., APPELLANTS,
v.
DISTRICT OF COLUMBIA, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAB8274-08) (Hon. Judith E. Retchin, Trial Judge).

The opinion of the court was delivered by: Reid, Associate Judge

Argued May 18, 2010

Before REID and KRAMER, Associate Judges, and NEBEKER, Senior Judge.

Appellants, Abigail and Don Padou, acting pro se, filed an amended complaint alleging, in part, that the District violated their First Amendment constitutional rights by selectively removing their posters from utility poles or public lampposts. We are constrained to reverse the trial court's grant of summary judgment in favor of the District, and we remand this case with instructions to afford the parties an opportunity to conduct discovery, followed by further proceedings (dispositive motions or trial).

FACTUAL SUMMARY

As the record reveals, the events which led to the filing of a complaint against the District by the Padous commenced in the year 2007. In that year, according to the Padous' complaint, the District of Columbia Department of Transportation released its "streetscape" study of the Brookland area of the city. One of the recommendations of the study was that above-ground utility power lines be buried, apparently for aesthetic reasons, and to safeguard and preserve trees. Because the District allegedly did not implement the recommendation, even though funds allegedly were available for the Brookland project, the Padous and other residents "form[ed] an ad hoc community group called 'Leave the Trees,'" and they planned a rally for August 23, 2008, which would criticize the District's failure to bury power lines on a main corridor of the Brookland area. The Padous paid for "approximately 400 posters to inform residents about the . . . political rally." The posters were attached to utility poles on August 16, 2008, but a District government worker removed them on August 18, on the ground that they did not comply with applicable District of Columbia regulations.*fn1 The Padous and others associated with Leave the Trees put up new posters on August 19 and 20. About two hundred residents attended the rally.

In their amended complaint, which was filed on December 4, 2008, the Padous alleged two causes of action, only one of which pertains to this appeal.*fn2 Count One of the Complaint alleges a constitutional First Amendment violation, as reflected in part, by the following paragraphs:

23. The removal of the posters by the District through its agency DPW was selective and based solely on the content of the posters. The only posters removed were those hung by Leave the Trees announcing the rally. DPW did not remove posters hung on the same poles by commercial entities. None of the commercial posters examined by Plaintiffs included contact information, the date posted, or evidence of filing with the Mayor of the District of Columbia.

24. The District's enforcement of 24 DCMR § 108 through its agency DPW was arbitrary and amounted to an infringement of Plaintiffs' right of freedom of speech guaranteed by the First Amendment to the Constitution of the United States.

25. DPW and its director . . . willfully violated Plaintiffs' right to freedom of speech guaranteed by the First Amendment to the Constitution of the United States.

26. 24 DCMR § 108 unreasonably and impermissibly burdens speech and as such is an unconstitutional regulation of speech.

These paragraphs may be read to allege both an "as applied" and a facial First Amendment challenge to 24 DCMR § 108; that is, as applied to the Padous, § 108 is unconstitutional, and the statute is unconstitutional on its face. As relief, the Padous requested, in part, that the trial court:

1. Declare Defendants' actions in tearing down posters announcing the Leave the Trees rally to be unconstitutional.

2. Award Plaintiffs damages to cover the cost of printing posters and for the willful violation of ...


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