Posted by: Patricia Salkin | September 21, 2011

Alaska Supreme Court Allows Free Speech Case to Continue Where Borough Prohibited Biblical Message to be Painted on a Roof

In 2005, Trask wrote a letter inquiring whether she’d need a permit to refresh a painted Biblical message on her roof. The Borough responded in the negative, stating that the message was not a sign within the meaning of the Ketchikan Gateway Borough Code (hereinafter “Code”), although the Code had been recently modified to prohibit “[r]oof mounted signs, including any signs painted on the roof surface.”

After receiving complaints from Trask’s neighbors, the Borough sent letters to Trask, informing her that the message violated the code, instructing her to remove the message, and threatening to issue citations if she did not remove it. When Trask failed to comply, the Borough filed a complaint to enjoin Trask from displaying the message and to impose a fine. Trask counterclaimed, seeking relief under 42 U.S.C. § 1983. The claim alleged that the Borough singled her out for enforcement based on her message’s content, and that the ordinance unconstitutionally restricted free speech.

The Superior Court found that Trask’s roof message was not a sign as defined in the Code and dismissed the Borough’s enforcement action. It also concluded that Trask lacked standing for her claim under § 1983 as well as for her claim challenging the constitutionality of Code § 60.10.090(A)(8) and dismissed the action. Trask argued that the court erred in dismissing her § 1983 claim. The Borough argued, on the other hand, that because Trask’s message is not a “sign” within the meaning of the ordinance, she lacked standing to challenge it, and because she did not remove the message, the Borough did not restrict Trask’s free expression. The Court agreed with Trask, however, that her rights were actually and prospectively violated by the Borough’s enforcement because the action was aimed specifically at her.

The Court cited precedent conferring standing upon a plaintiff in similar cases even though that plaintiff had not been prosecuted. Consequently, the Court found that the Borough’s threats of citations and filing of a complaint seeking injunctive relief, a civil penalty and attorney’s fees, caused Trask to not refresh her message. This was sufficient to confer interest-injury standing. The Borough argued next that Trask’s § 1983 claim is improper for failure to state a claim upon which relief can be granted. As a result, the Court evaluated the claim by considering (1) if a constitutional violation caused Trask’s harm, and (2) if the city is responsible for the violation. Trask argued that the Borough’s action were an “overbroad constitutional application of the ordinance” which effectively “curtail[ed] her speech.” Because the Court must assume that her allegations are true when evaluating a Rule 12(b)(6) motion to dismiss, the Court found that Trask had alleged a set of facts consistent with a claim that her speech was protected. Trask then alleged facts consistent with the claim that the Borough’s enforcement of the ordinance against her did not serve any significant governmental interest, confirmed by the letter from the Borough stating that Trask did not need a permit, the lower court’s finding that the ordinance was not meant to regulate residential signs, and that Trask’s message appeared to be the only non-commercial “sign” to ever be an issue for the Borough. The next inquiry becomes, then, whether the Borough is responsible for this violation. Trask’s straightforward claim expressly alleging that the Borough’s enforcement of the ordinance against her violated her free speech rights, taken as true, sufficiently sets forth facts stating a claim regarding the Borough’s responsibility for the violation.

The Borough argued that it has immunity under Imbler v. Pachtman, but the Court disagreed, and clarified that Imbler confers immunity on prosecutors, not municipalities. Therefore, the Court found that Trask had sufficiently pled an actionable § 1983 claim, as a litigant did not need to show a complete chilling of free speech rights at the pleading stage; a litigant must only show that “an official’s acts would chill or silence a person of ordinary firmness from future First Amendment activities.” The Court held that the lower court erred in dismissing Trask’s § 1983 claim and remanded the claim for further proceedings. It also vacated the award of attorney’s fees without deciding whether the lower court erred in denying Trask’s claim for enhanced attorney’s fees, and noted that Trask may be entitled to attorney’s fees under 42 U.S.C. § 1988(b) if she successfully litigates her § 1983 claim.

Trask v. Ketchikan Gateway Borough, 253 P.3d 616 (Alaska, 6/17/2011).

The opinion can be accessed here

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