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Johnson v. City and County of Philadelphia

September 28, 2010

KENYATTA JOHNSON, INDIVIDUALLY AND AS A 2008 DEMOCRATIC PARTY PRIMARY CANDIDATE FOR STATE REPRESENTATIVE AND ELECTOR AND ON BEHALF OF ALL CITIZENS WITHIN THE 186 TH LEGISLATIVE DISTRICT AND ALL CITIZENS OF PHILADELPHIA, AND DAMON K. ROBERTS, INDIVIDUALLY AND AS A 2007 DEMOCRATIC PARTY CANDIDATE FOR A PHILADELPHIA CITY COUNCIL AND ELECTOR AND ON BEHALF OF ALL CITIZENS WITHIN THE SECOND COUNCILMANIC DISTRICT AND ALL CITIZENS OF PHILADELPHIA,
PLAINTIFFS
v.
CITY AND COUNTY OF PHILADELPHIA, DEFENDANT



The opinion of the court was delivered by: James Knoll Gardner, United States District Judge

OPINION

This matter is before the court on Defendant's Second Motion for Summary Judgment filed October 20, 2009. Plaintiffs' Memorandum in Opposition to Defendants' Motion for Summary Judgment was filed November 11, 2009. For the following reasons, I grant defendant's motion and enter judgment in favor of defendant and against plaintiffs.

JURISDICTION

Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff's claims allegedly occurred in Philadelphia, Pennsylvania, which is within this judicial district.

PROCEDURAL HISTORY

Plaintiff Kenyatta Johnson initiated this action on April 13, 2008 by filing a four-count civil Complaint, together with a motion for preliminary injunction, against the City and County of Philadelphia and the City of Philadelphia Department of Licenses and Inspections. The Complaint alleged that Philadelphia city and county ordinances violate the First and Fourteenth Amendments to the United States Constitution by imposing fines, fees and/or taxes for placing political signs on poles within the 186 th Legislative District, where plaintiff Johnson was running for office. Specifically, plaintiff Johnson challenged city ordinances §§ 10-1202 and 10-1203. Defendant answered on April 18, 2008.

The case was originally assigned to my colleague, former United States District Judge Marvin Katz, and was reassigned to former United States District Judge Bruce W. Kauffman on April 14, 2008. That same day, Judge Kauffman referred the motion for preliminary injunction to Magistrate Judge L. Felipe Restrepo, who denied the motion by memorandum and order dated April 16, 2008. On April 18, 2008, Magistrate Judge Restrepo denied plaintiff's motion for reconsideration.

On July 1, 2008, plaintiff Johnson moved to file an amended complaint to add Damon K. Roberts as a plaintiff. Judge Kauffman granted the motion on July 15, 2010.*fn1 Defendant answered the four-count First Amended Complaint on August 4, 2008.

Count One of the First Amended Complaint alleges that "Defendants' enforcement of a total ban on political speech in the form of campaign posters hung on a pole within the public right of way is a violation of Plaintiff's and all citizens' First Amendment rights to free political speech especially prior to an election." (First Amended Complaint, paragraph 26.)

Similarly, Count Two alleges that "The total ban on political speech in the form of political signs posted on trees and poles within the public right of way in the 186 th Legislative District, Second Councilmanic District and throughout the City and County of Philadelphia unconstitutionally interferes with Plaintiff's campaign for public office and the rights of all citizens to express a political opinion within the public right of way in front of their homes or businesses." (First Amended Complaint, paragraph 28.)

Count Three alleges that "defendants' enforcement of Philadelphia Code § 10-1201 et seq and the punitive threat of imposition of fines and costs impermissibly interferes with Plaintiff's campaign in violation of the Twenty Fourth Amendment in that it imposes an unconstitutional tax on elections of federal and state officials." (First Amended Complaint, paragraph 31.)

Count Four alleges that the City of Philadelphia ("City") favors commercial speech by providing an exception for special banners, which according to plaintiffs have not been used for political campaigning. Plaintiffs allege that defendant's exception for non-political speech through the "banner program" denies plaintiff Johnson specifically, and political candidates generally, equal protection of the law in violation of the Fourteenth Amendment. (First Amended Complaint, paragraphs 35-37.)

By Order dated September 24, 2008, Judge Kauffman granted defendants' unopposed motion to close an earlier case, Civil Action No. 07-cv-4582 (the "2007 case"), wherein plaintiff Roberts challenged the same ordinances which are at issue in this matter. Because plaintiff Roberts had been added as a plaintiff in the Amended Complaint in this action, Judge Kauffman consolidated the 2007 case into the case at bar, and closed the 2007 case.

On November 18, 2008, defendant the City and County of Philadelphia filed a motion for summary judgment, which plaintiffs opposed by memorandum filed December 3, 2008. On August 10, 2009, the case was reassigned from Judge Kauffman to me. Because the parties' pending briefs did not comport with my formal written Policies and Procedures, I dismissed the motion by Order dated September 22, 2009 without prejudice for defendant to refile its motion in accordance with my requirements.

By stipulation of dismissal filed September 24, 2009, plaintiffs voluntarily dismissed defendant City of Philadelphia Department of Licenses and Inspections as a party to this action pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure.

Defendant's Second Motion for Summary Judgment was filed October 20, 2009. Plaintiffs' Memorandum in Opposition to Defendant's Motion for Summary Judgment was filed November 11, 2009. On January 13, 2010, I heard oral argument and took the matter under advisement. Hence this Opinion.

STANDARD OF REVIEW

In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-2510, 91 L.Ed.2d 202, 211 (1986); Federal Home Loan Mortgage Corporation v. Scottsdale Insurance Company, 316 F.3d 431, 443 (3d Cir. 2003). Only facts that may affect the outcome of a case are "material". In making this determination, the "evidence of the non-movant is to be believed" and all reasonable inferences from the record are drawn in favor of the non-movant. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216.

Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See Watson v. Eastman Kodak Company, 235 F.3d 851, 857-858 (3d Cir. 2000). Plaintiffs cannot avert summary judgment with speculation or by resting on the allegations in their pleadings, but rather they must present competent evidence from which a jury could reasonably find in their favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995).

FACTS

Based upon the pleadings, record papers, exhibits, the concise statement of undisputed facts filed by defendant, and the Plaintiffs' Response to Defendant's Statement of Undisputed Facts,*fn2 the pertinent undisputed facts for purposes of the motion for summary judgment are as follows.

Chapter 10-1200 of the Philadelphia Code concerns the posting of signs. This Bill was enacted in response to this court's decision in Bella Vista United, et al. v. City of Philadelphia, 2004 U.S.Dist.LEXIS 6771 (E.D.Pa. April 15, 2004) (Padova, J.), which enjoined the City from enforcing certain sections of the Philadelphia Code. The former Code provisions instilled in undesignated City officials the discretion to determine which temporary signs may be posted on public fixtures by requiring individuals to obtain a permit, submit a deposit, and pay a fee before posting any temporary signs. See Bella Vista, supra.

The purpose of the current ordinance is to promote public safety and to reduce blight in the City.*fn3 Section 10-1202 prohibits the posting of any sign on any utility pole; streetlight; traffic or parking sign or device, including any post to which such sign or device is attached; historical marker; or City-owned tree or tree in the public right-of-way. The reasons for prohibiting signs on trees and posts are public safety and aesthetics. However, a person may post a sign on a streetlight if the sign complies with the requirements of the Banner Program.

Section 10-1203 provides that any posted sign that does not comply with § 10-1202 may be removed by the Department of Licenses and Inspections or its designees, and any person responsible for posting the sign shall be fined for the cost incurred in removing the signs and a penalty of $75.00.

Between January 23, 2006 and October 30, 2007, the City's Department of Licenses and Inspections issued numerous violation notices and tickets to political candidates and commercial entities, such as carpet cleaning companies, weight-loss programs, apartment-rental organizations, nightclubs, plumbers, childcare agencies and others, for violating § 10-1202. The City issued a total of the following amount of tickets to political candidates running for office in May 2007: Bob Brady (287), Dwight Evans (168), Sandra Miller (25), Sandra Mills (31), Chaka Fattah (24), Michael Nutter (31), Wayne Johns (27), John Greene (41), Bob Mulgrew (11), Tom Knox (4), Damon Roberts (76), Helen A. Divers (1), Curtis McAllister (10), Carol Campbell (1), Matt McClure (52), Bernie Stain (3), and Bill Greenlee (1).

Voters in Philadelphia are centrally located. Candidates in the City rely on door-to-door canvassing and literature-dropping, posting signs on private property, and phone calls.

In 2008, plaintiff Johnson ran for the position of State Representative for District 186. He ordered 5,000 posters to be used in his 2008 campaign. These posters were placed on poles in the right-of-way and in windows of campaign supporters' homes and businesses.

On March 26, 2008, the City issued a letter to plaintiff Johnson advising that, pursuant to § 10-1202, he must remove any signs placed on any utility pole, streetlight, traffic or parking device, historical marker, City-owned tree or tree in the public right-of-way. The letter further advised plaintiff Johnson that failure to remove would result in confiscation and a removal penalty of $75.00. Plaintiff Johnson was featured in a local South Philadelphia newspaper in which he had an opportunity to discuss his position on issues facing voters, at no cost to his campaign.

Plaintiff Johnson has not asserted that he applied to participate in the City's Banner Program. He was successful in his ...


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