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April 5, 2002


The opinion of the court was delivered by: William C. Conner, United States District Judge.



In November 2001, plaintiff, a distinguished attorney, ran as the democratic candidate for the office of Orange County District Attorney. (Pl. Rule 56.1 Stmt. ¶ 86.) In large part because plaintiff was mounting a challenge against a sixteen-year incumbent, plaintiff's stated campaign strategy was to foster name recognition by inundating the public with campaign signs. Plaintiff ordered approximately 5,000 campaign signs. (Pl. Dep. at 15-16.) Most signs measured sixteen by twenty-six inches in size, but twenty measured four by eight feet. (Pl. Decl. ¶¶ 3, 5.) Plaintiff alleges that in August 2001, her campaign staff posted political signs announcing her candidacy in various locations in Walkill. (Id. ¶ 6.) Plaintiff's staff similarly posted signs within Wawayanda between September 21-24, 2001. (Id.)

In late August 2001, plaintiff alleges that she was notified by Walkill Town Supervisor Tom Nosworthy and Code Enforcement Officer Barry Weissman that her signs violated the local sign ordinance. (Id. ¶ 7.) On September 4, 2001, plaintiff received a written Notice of Violation demanding that the signs be removed. (Id.) After plaintiff protested, Walkill Building Inspector Ed Steenrod informed plaintiff that he would suggest to the Town Attorney that the ordinance was unconstitutional. No further action was taken by Walkill. On September 28, 2001, plaintiff was notified via telephone by Wawayanda Building Inspector Tom Lyons that her signs posted in Wawayanda had been removed because they were in violation of the local sign ordinance. (Id. ¶ 8.)

Plaintiff filed the instant action on September 25, 2001 challenging the facial constitutionality of defendants' sign ordinances and seeking nominal damages and injunctive relief. To the extent that a determination is necessary as to the merits of plaintiff's claims, we will address each challenged ordinance individually as well as defendants' arguments with respect to the claim.


I. Summary Judgment Standard

Plaintiff and defendant Greenwood Lake move for summary judgment pursuant to FED. R. CIV. P. 56. Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 254 (E.D.N.Y. 1999). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Ticali, 41 F. Supp. 2d at 254. In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See Anderson, 477 U.S. at 255. Summary judgment is warranted when the nonmovant has no evidentiary support for an essential element on which it bears the burden of proof Celotex, 477 U.S. at 322-23; Silver v. City Univ. of N.Y, 947 F.2d 1021, 1022 (2d Cir. 1991).

II. Jurisdictional Requirements

A. Standing

Defendants first argue that plaintiff lacks standing to bring the instant action. To prevail, plaintiff must satisfy the requirements of Article III of the Constitution as well as any judicially imposed prudential requirements. See Dow Jones & Co. v. Simon, 842 F.2d 603, 606 (2d Cir. 1988). To have standing, plaintiff must demonstrate: (1) an "injury in fact" that is "concrete and particularized" as well as "actual or imminent," rather than "conjectural or hypothetical"; (2) an injury that is traceable to the challenged act; and (3) a likelihood that the injury can be redressed by the court. See Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 142 (2d Cir. 2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The determination of whether standing exists requires consideration of the "manner and degree of evidence required at the successive stages of litigation," Lujan, 504 U.S. at 561, and is made as of the time the Complaint was filed. See County of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991).

In addition to the Article III requirements, courts have self-imposed prudential limitations on standing. See Lerman, 232 F.3d at 143 ("The question of standing encompasses both constitutional and prudential considerations."). Generally, a plaintiff may not "rest his claim to relief on the legal rights or interest of third parties." Warth v. Seldin, 422 U.S. 490, 499 (1975). The rule is designed to ensure that the issues before the court are concrete and to prevent unnecessary opinions on constitutional issues. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955 (1984). However, an exception to the traditional standing rule has been carved out within the context of the First Amendment. Where, as here, a plaintiff claims that a statute on its face is overly broad, the Supreme Court has allowed the plaintiff to assert the rights of third parties "without regard to the ability of the other to assert his own claims and `with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.'" Id. at 957 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)). The Court reasoned that

[e]ven where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged. "Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression."

Id. at 956-57 (quoting Broadrick, 413 U.S. at 612.) Under this so-called "overbreadth doctrine," a plaintiff need only "demonstrate a substantial risk that application of the provision will lead to the suppression of speech." Lerman, 232 F.3d at 144. Likewise, "when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 755-56 (1988); see also Knoeffler v. Town of Mamakating, 87 F. Supp.2d 322, 332 (S.D.N.Y. 2000) (Conner, J.) (the "traditional requirements of standing are relaxed when the matter involves a prior restraint of speech or expression because of the potential for abuse of First Amendment rights").

We conclude that plaintiff has standing to assert a facial challenge to the various ordinances under the overbreadth doctrine. While plaintiff was undisputedly permitted to post some signs, she alleges that the threat of enforcement and the negative publicity it would generate discouraged her from posting signs as early in the campaign as she would have liked. Furthermore, by voluntarily complying with the ordinances, she was unable to post the larger signs and was limited to posting signs at permitted locations only. This is precisely the type of harm, that of self censorship, that has led courts to relax traditional standing requirements. See Virginia v. American Booksellers Assoc., 484 U.S. 383, 393 (1988) (finding standing despite fact that newly enacted statute had not yet been enforced because "the alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution"); see also Knoeffler, 87 F. Supp. 2d at 332 ("[A] party may challenge a statute that requires a permit for expression on the grounds that it is vague and . . . overbroad . . . without first applying for the permit and being denied."). Although plaintiff is not asserting an as-applied challenge, the self-censorship injury plaintiff alleges informs our conclusion that plaintiff has demonstrated "a substantial risk that application of the provision will lead to the suppression of speech" of others not before this Court with respect to political speech. See Lerman, 232 F.3d at 144; see also Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984) ("In short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged.").

Defendant Greenwood Lake argues that overbreadth standing is inapplicable because plaintiff fails to demonstrate that the ordinances will have a different impact on third parties than it will on plaintiff. Defendant's argument derives from the concept of "substantial overbreadth," as described in Viacent, 466 U.S. at 800. The Vincent Court rejected the plaintiffs' application for third-party standing where the plaintiffs conceded that the challenged ordinance was reasonable as applied to them. The Court held that the plaintiffs "[had] not attempted to demonstrate that the ordinance applie[d] to any conduct more likely to be protected by the First Amendment than their own [unprotected] crosswires signs." Because it appeared that the ordinance could be validly applied to plaintiffs as well as "most if not all of the signs of parties not before the Court," the Court concluded that plaintiffs "failed to demonstrate a realistic danger that the ordinance will significantly compromise recognized First Amendment protections of individuals not before the Court." Id. at 802. Here, on the other hand, there is no clear indication that the challenged ordinances may be validly applied to plaintiff as well as to a majority of those potential plaintiffs not before the Court. While defendants may ultimately prevail, the issue is properly reserved for the determination of plaintiff's claims on the merits. As the Supreme Court clarified in Secretary of State of Maryland,

[t]he requirement that a statute be substantially overbroad before it will be struck down on its face is a standing question only to the extent that if the plaintiff does not prevail on the merits of its facial challenge and cannot demonstrate that, as applied to it, the statute is unconstitutional, it has no standing to allege that, as applied to others, the statute might be unconstitutional.

467 U.S. at 959. Accordingly, we conclude that plaintiff has overbreadth standing to assert her claims premised on the suppression of political speech.

B. Mootness

The second Article III requirement implicated in this action is that of mootness. A "case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). The burden on defendants to demonstrate mootness "is a heavy one." United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). A litigant must establish that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66 (1987); see also New York State Nat'l Org. for Women v. Terry, 159 F.3d 86, 92 (2d Cir. 1998). Furthermore, in certain cases involving issues which are "capable of repetition, yet evading review," an exception to the mootness doctrine exists where two elements are met: "(1) [t]he challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The Second Circuit recently clarified the second prong of the test, noting that "mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence." Van Wie v. Pataki, 267 F.3d 109, 115 (2d Cir. 2001).

Defendants argue that plaintiff's claims are moot because the county election has passed and that the mootness exception does not apply because plaintiff failed to demonstrate any likelihood that she would be subject to the same challenged action in the future. We disagree. Plaintiff has asserted a proper claim for nominal damages under § 1983 for the alleged constitutional violation. See Dawes v. Walker, 239 F.3d 489, 496 (2d Cir. 2001) (stating that nominal damages are available in a § 1983 claim for a constitutional violation). It therefore follows that plaintiff has a legally cognizable interest in the outcome of the dispute, and that her claims are not moot. As explained in Van Wie,

[w]e note that had the plaintiffs sought money damages in addition to their request for injunctive relief, this controversy would not be moot. Indeed, for suits alleging constitutional violations under 42 U.S.C. § 1983, it is enough that the parties merely request nominal damages. . . . Thus, plaintiffs in election cases could avoid the potential for mootness by simply expressly pleading that should the election pass before the issuance of injunctive relief, nominal damages are requested.

267 F.3d at 115 n. 4; see also Ynigues v. Arizonans for Official English, 69 F.3d 920, 949 n. 34 (9th Cir. 1995) (noting that "an award of nominal damages . . . is singularly appropriate in First Amendment overbreadth cases such as this, for a successful plaintiff . . . has convinced the court to strike down a law that would, if left standing, chill the constitutionally protected speech of large numbers of other members of society), rev'd on other grounds, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). Accordingly, we need not consider whether the mootness exception properly applies to the facts of the instant dispute.

Defendants Chester and Hamptonburgh additionally argue that plaintiff's claims are moot because, after the filing of plaintiff's Complaint, Chester and Hamptonburgh amended their respective ordinances to remove the allegedly offending provisions. However, the voluntary repeal of an ordinance "does not necessarily moot challenges to it, because without a judicial determination of constitutionality the particular governing body remains free to reinstitute the law at a later date." National Advertising Co. v. Town of Babylon, 900 F.2d 551, 554 n. 2 (2d Cir. 1990). Because it is not clear that the offending statute will not resurface in the future, we decline to moot plaintiff's claim on this basis. See Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) ("Voluntary cessation of challenged conduct moots a case . . . only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur . . . [a]nd the heavy burden of persuading the court . . . lies with the party asserting mootness.") (citations and emphasis omitted).

III. Constitutionality

The Supreme Court has held that political speech is entitled to the highest form of protection by the Free Speech Clause of the First Amendment. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346 (1995) ("[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs, . . . of course includ[ing] discussions of candidates.") (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Plaintiff moves for summary judgment on the grounds that defendants' ordinances violate the First Amendment through content-based regulation and the grant of excessive discretion to municipal officials. We will discuss each argument in turn and their application to the individual statutes at issue. In evaluating plaintiff's facial challenge, "we must consider [defendants'] authoritative constructions of the ordinance[s], including its own implementation and interpretation of [them]." Forsyth County, Georgia v. The Nationalist Movement, 505 U.S. 123, 131 (1992).

A. Content-Based Regulation

A statute regulating speech "of private citizens on private property or in a traditional public forum is presumptively impermissible, and this presumption is a very strong one." City of Ladue v. Gilleo, 512 U.S. 43, 59 (1994) (O'Connor, J., concurring). Where a court determines that a municipality enacted content-based speech regulations, strict scrutiny applies and the municipality must show that the "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." See Boos v. Barry, 485 U.S. 312, 321 (1988). An ordinance is content-based when the content of the speech determines whether the ordinance applies. See Forsyth County, 505 U.S. at 134 (finding challenged ordinance to be content-based because the administrator necessarily had to examine the content of the speech to assess fees required by the ordinance); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516 (1981) (finding challenged ordinance to be content-based because it "distinguished in several ways between permissible and unpermissible signs at a particular location by reference to their content"). However, the government may impose reasonable time, place and manner restrictions on speech as long as they are content neutral, narrowly tailored to serve a significant government interest and leave open "ample channels for communication." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1981).

1. Greenwood Lake

Plaintiff argues that certain provisions of the Greenwood Lake sign ordinances regulate speech on the basis of content by requiring noncommercial speakers, including political speakers, to obtain a permit, by imposing content based fees, and by imposing durational, numerical and size limitations. The challenged provisions of the Greenwood Lake Code, Art. VIII, Signs §§ 120-40 to 44 are as follows:

§ 120-42 (E.) Permit Required. All permanent signs over two square feet in areas shall require the issuance of a permit . . .
§ 120-42 (J.) All temporary signs shall be marked by a sticker furnished by the Building Inspector.
(1) Permits for temporary signs may be issued by the Village Board for a period of 14 days. Such permits are renewable, under special circumstances, for an additional 14 days. There will be a penalty determined by ...

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