McCormack v. Township of Clinton

872 F. Supp. 1320, 1994 U.S. Dist. LEXIS 14431, 1994 WL 738912
CourtDistrict Court, D. New Jersey
DecidedOctober 3, 1994
DocketCiv. 94-4510 (GEB)
StatusPublished
Cited by15 cases

This text of 872 F. Supp. 1320 (McCormack v. Township of Clinton) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCormack v. Township of Clinton, 872 F. Supp. 1320, 1994 U.S. Dist. LEXIS 14431, 1994 WL 738912 (D.N.J. 1994).

Opinion

MEMORANDUM OPINION

BROWN, District Judge.

This matter comes before the Court on the application of plaintiff pro se, Brian McCor-mack, for an Order of this Court preliminarily enjoining defendant from enforcing Clinton Township Ordinance No. 552-94, pursuant to Fed.R.Civ.P. 65. For the reasons set forth below, the Court will grant plaintiffs application for preliminary injunctive relief.

I. BACKGROUND

On June 23, 1994, the Clinton Township Council adopted Ordinance No. 552-94, which provides in relevant part:

(A) Political: Any sign supporting any particular candidate, candidates party, etc., in any given election year and pertaining to election related matters.
(G) Political signs:
*1322 (2) Time limit: No political sign shall be displayed more than ten (10) days prior to any event or later than three (3) days after the event.

Ordinance No. 552-94, “An Ordinance to Amend Chapter 101 Entitled ‘Signs,’ ” codified at Clinton Code Article IV § 101-9(G)(2), Attached as Appendix A-2 to Plaintiffs Brief in Support of Application for In-junctive Relief. The resolution introducing the ordinance states that its purpose is “to set forth reasonable restrictions to control the erection and removal of political signs in the interest of public safety [.]” Id. Amplifying this statement, Stephen Haynes, Councilman for the Township of Clinton, states:

[S]igns that I had mounted to wooden laths often were blown over by the wind or fell over and had to be fixed when it rained. I am concerned that a sign could fly into a passing car.
4. The longer the signs are up the higher the risk of them ending up on the ground or in the road. These fallen signs, combined with political flyers falling off of mailboxes, create an unnecessary litter problem and significantly impact on the aesthetics of the community as a whole. To produce more durable signs would only escalate the cost of running for election and promote the philosophy that elections can be won by the best funded candidates.

Certification of Stephen Haynes, at ¶¶ 3^4.

On September 9,1994, plaintiff commenced this action, contending that Ordinance No. 552-94 is an unconstitutional abridgement of the Free Speech Clause of the First Amendment. 1 Plaintiff initially sought a Temporary Restraining Order on September 9, 1994. This Court denied that request and permitted defendant to submit a response to plaintiff’s application. On September 14, 1994, after reviewing the papers submitted by both sides and hearing oral argument, the Court granted plaintiff’s application for temporary restraints pending the issuance of an injunction preliminarily restraining defendant from enforcement of Ordinance No. 552-94. This memorandum constitutes the Court’s findings of fact and conclusions of law in support of the preliminary injunction.

II. DISCUSSION

The grant of preliminary injunctive relief is an “extraordinary remedy, which should be granted only in limited circumstances.” Frank’s GMC Track Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir.1988) (citing United States v. City of Philadelphia, 644 F.2d 187, 191 n. 1 (3d Cir.1980)). When deciding such a motion, a court must consider four factors: (1) the moving party’s likelihood of success on the merits; (2) the probability of irreparable injury to the moving party in the absence of relief; (3) the potential harm to the non-moving party; and, if applicable, (4) the public interest. Fechter v. HMW Indus., Inc., 879 F.2d 1111, 1116 (3d Cir.1989) (citing United States v. Price, 688 F.2d 204, 211 (3d Cir.1982)). “Only if the movant produces evidence sufficient to convince the trial judge that all four factors favor preliminary relief should the injunction issue.” Opticians Ass’n of America v. Independent Opticians of America, 920 F.2d 187, 192 (3d Cir.1990) (citing ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir.1987)).

A. Likelihood of Suocess

To obtain preliminary injunctive relief, the moving party must first demonstrate “a reasonable probability of succeeding on the merits of his claim.... ” Frumer v. Cheltenham Tp., 709 F.2d 874, 876 (3d Cir.1983). Accordingly, this Court must first determine the likelihood that it will find Ordinance No. 552-94 to be an impermissible abridgement of the Free Speech Clause.

Plaintiff proffers two reasons why the ordinance is unconstitutional. First, plaintiff contends that the ordinance is content-based because it imposes a time restriction that is specific to political signs. Although signs pertaining to or promoting political candidates or election-related matters are subject to a ten-day restriction, other signs are sub *1323 ject either to no time restriction or to a thirty-day limitation. See, e.g., Clinton Township Municipal Code § 101-2 (“Temporary Signs”) (limiting display to thirty days in a single year), Attached as Appendix A-2 to Plaintiffs Brief in Support of Application for Injunctive Relief. Plaintiff then argues that the interests asserted by the state— promoting safety and reducing clutter in public areas — are not sufficiently compelling to justify an infringement specific to political speech. In the alternative, plaintiff suggests that even if the interests are compelling, the ordinance is not narrowly tailored because it applies only to political signs.

Defendant disputes plaintiffs arguments, and contends that plaintiff can not demonstrate a likelihood of success on the merits. Defendant first argues that the ordinance is content-neutral. Second, defendant argues that even if the ordinance is content-based, it passes the standard set forth in Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992). In short, defendant contends that the asserted interests are compelling, and that Ordinance No. 552-94 is the least restrictive means of promoting those interests.

There is no question that Clinton Township regulates speech by imposing various regulations upon posting signs. See generally Clinton Code §§ 101-1 to 101-9, attached as Appendices A-l to A-2 to Plaintiffs Brief in Support of Application for Injunctive Relief. Of course, such restrictions are not impermissible, because “even speech entitled to the highest First Amendment protection may be subject to reasonable time, place and manner regulations that are content-neutral, serve a significant government interest, and that leave open ample alternative channels for communication of the information.”

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Bluebook (online)
872 F. Supp. 1320, 1994 U.S. Dist. LEXIS 14431, 1994 WL 738912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccormack-v-township-of-clinton-njd-1994.