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Padou v. District of Columbia

Court of Appeals of Columbia District

October 3, 2013

Don PADOU, et al., Appellants,
v.
DISTRICT OF COLUMBIA, Appellee.

Submitted June 4, 2013.

Page 384

[Copyrighted Material Omitted]

Page 385

Don Padou and Abigail Padou, pro se.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and James C. McKay, Jr., Senior Assistant Attorney General, were on the brief for appellee.

Before FISHER and EASTERLY, Associate Judges, and Farrell, Senior Judge.

EASTERLY, Associate Judge:

Don and Abigail Padou posted a large number of signs advertising for an upcoming community rally on utility poles and public lampposts in their Brookland neighborhood. District officials removed the signs, citing non-compliance with three subsections of 24 DCMR § 108 (2012) (regulating the posting of " signs, posters and placards" ). The Padous sued the District of Columbia, alleging that, both as applied to them and on its face, the regulation violated the First Amendment. The trial court (Hon. Judith E. Retchin) granted the District summary judgment, but this court in Padou v. District of Columbia, 998 A.2d 286 (D.C.2010) (" Padou I " ) reversed. On remand, the Padous abandoned their as-applied challenge and the trial court (Hon. Craig Iscoe) [1] dismissed the remainder of the Padous' case on standing and mootness grounds, thereby obviating a merits ruling on their facial challenges to § 108. The Padous appealed this ruling, and again we reverse.

Although we agree with the trial court that the Padous did not have standing to litigate facial challenges either to § 108 as a whole or as to particular subsections of § 108 that were never applied to them, the Padous did have standing to challenge

Page 386

those subsections that the District asserted they had violated: §§ 108.7, 108.10, and 108.11. Moreover, the Padous' challenges to these three provisions were not rendered moot by amendments to other subsections of the statute. Therefore, the trial court should have ruled on the merits of the Padous' arguments that (1) §§ 108.7, 108.10, and 108.11 are not permissible time, place, and manner restrictions on speech (factoring in, with respect to § 108.11, the right to speak with anonymity), and (2) § 108.10 is unconstitutionally vague. We remand a second time so that the Superior Court can consider the merits of these claims.

I. Facts and Procedural History[2]

The Padous are part of a group called " Leave the Trees" that was formed to lobby the District to bury utility lines in Brookland. In August 2008, the Padous created approximately 400 posters advertising a rally at which they would advocate their cause, and they hung them on utility poles and public lampposts along 12th Street, N.E. Some of the signs said, " Leave the Trees" ; others said, " This pole could be a tree." Each of the signs advertised the upcoming rally. Two days after the Padous posted the signs, the District removed them because the signs failed to comply with three subsections of 24 DCMR § 108.

Specifically, the District informed the Padous that the signs were removed because they failed to comply with 24 DCMR § 108.7, which requires each sign to contain the date upon which it was initially posted; 24 DCMR § 108.10, stating that " [n]o more than three ... versions or copies of each sign" may be posted on one side of the street on a single block; and 24 DCMR § 108.11, requiring that copies of the signs and ...


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