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Power v. San Juan County

United States District Court, W.D. Washington, Seattle

June 20, 2018

NICHOLAS POWER, Plaintiff,
v.
SAN JUAN COUNTY a municipal subdivision of the State of Washington; and MILENE HENLEY, San Juan County Auditor in her personal capacity; and, JOHN and JANE DOES, 1-99, Unknown San Juan County officials, employees and agents, in their personal capacity, Defendants.

          PATTERSON BUCHANAN FOBES & LEITCH, INC., P.S. BY MICHAEL T. KITSON, ATTORNEY FOR DEFENDANTS SAN JUAN COUNTY AND MILENE HENLEY

          BRESKIN JOHNSON & TOWNSEND, PLLC BY ROGER M. TOWNSEND, ATTORNEYS FOR PLAINTIFF NICHOLAS POWER

          STIPULATION AND ORDER REGARDING CONSTITUTIONALITY OF SJCC 18.40.400(C) (1998)

          Marsha J. Pechman United States District Judge

         I. STIPULATION

         Plaintiff Nicholas Power and Defendants San Juan County and Milene Henley (collectively “the parties”) STIPULATE and AGREE as follows:

         1. Plaintiff filed to run as a candidate for the office of San Juan County Prosecuting Attorney on May 18, 2018.

         2. On the day Mr. Power became a candidate for prosecutor, San Juan County Code (“SJCC”) Section 18.40.400(C) (1998) provided: “Political signs shall be permitted outright; provided, that they shall not be erected 45 days prior to an election and shall be removed by the candidate or landowner no more than 72 hours following an election terminating candidacy. Political signs shall not exceed six square feet in area.”

         3. On May 21, 2018, Plaintiff appeared before the San Juan County Superior Court, which entered a temporary restraining order prohibiting the enforcement of the temporal aspects of former SJCC 18.40.400(C) (1998). (ECF No. 2-5 at 3). The County did not oppose the Motion for a Preliminary Injunction, and a Preliminary Injunction was issued on June 1, 2018 and that injunction is in full force and effect. (ECF No. 2-14 at 3).

         4. On June 12, 2018, the San Juan County Council adopted Ordinance No. 14-2018, Ordinance Adopting Interim Official Controls Regarding Political Signs, which amended SJCC 18.40.400(C) (1998) to remove all temporal aspects of the code for a period of six months (the maximum duration allowable for interim office controls under RCW 36.70A.390 and RCW 36.70.795) and set the matter for public hearing before a joint meeting between the San Juan County Council and the San Juan County Planning Commission scheduled for July 20, 2018. A copy of Ordinance No. 14-2018 is attached hereto as Exhibit A.

         5. San Juan County acknowledges that he temporal restriction in former SJCC 18.40.400(C) (1998) is unconstitutional under Collier v. City of Tacoma, 121 Wn.2d 737, 760, 854 P.2d 1046 (1993); see also, Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2225, 2232 (2015); City of Ladue v. Gilleo, 512 U.S. 43, 58, 114 S.Ct. 2038 (1994).

         6. The parties agree that in light of the above-cited precedent, the temporal restriction in former SJCC 18.40.400(C) (1998) is unconstitutional.

         7. Defendants removed this case to United States District Court on June 4, 2018. The parties agree that this stipulation will narrow the disputed issues in controversy in this litigation.

         8. Plaintiff intends to move for a Temporary Restraining Order under Rule 65 regarding certain remaining issues in the case, which Defendants intend to oppose. The ...


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