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Power v. San Juan County

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

July 6, 2018

NICHOLAS POWER, Plaintiff,
v.
SAN JUAN COUNTY, et al., Defendants.

          ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

          Marsha J. Pechman, United States District Judge.

         THIS MATTER comes before the Court on Plaintiff's Motion for a Temporary Restraining Order. (Dkt. No. 11.) Having reviewed the Motion, the Response (Dkt. No. 13), the Reply (Dkt. No. 15) and all related papers, the Court DENIES the Motion. The Court declines to hear oral argument on the matter.

         Background

         Plaintiff Nicholas Power brings this suit against Defendants San Juan County (the “County”) and San Juan County Auditor Milene Henley. Plaintiff is a candidate for San Juan County Prosecuting Attorney and is the sole challenger to incumbent Randal Gaylord. (Dkt. No. 11 at 2-3.) Plaintiff seeks to publicize his candidacy by erecting campaign signs throughout the county, and challenges the constitutionality of a statement published by Auditor Henley suggesting that residents “limit the amount of time political signs are displayed” before an election, and “politely remove them as soon as possible after an election is over.” (Id. at 3-5; see also Dkt. No. 12, Ex. A.) The primary election is set to take place on August 6, 2018 and the general election on November 6, 2018. (Dkt. No. 11 at 2.)

         Until recently, San Juan County Code (“SJCC) 18.40.400(c) limited the duration for which political signs may be posted before and after an election, and provided:

Political signs shall be permitted outright; provided, that they shall not be erected more than 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.

         Plaintiff filed suit in San Juan County Superior Court challenging the constitutionality of SJCC 18.40.400(c)'s temporal restrictions. (Dkt. No. 1, Ex. 1.) The Superior Court entered a TRO preventing enforcement of the temporal restrictions on May 21, 2018, and entered a preliminary injunction on June 1, 2018. (Dkt. No. 2, Ex. 14.)

         On May 30, 2018, Auditor Henley published an editorial on the County's website titled “It's political sign season!” The editorial provides:

It's election time, and with that comes the annual crop of political signs, popping up like pesky dandelions across the countryside. We've been fortunate in San Juan County. A well-meaning ordinance - now de-toothed by a recent court action - combined with strong local sentiment has kept our sign infection to a minimum. . . .
As an administrator of elections, I like yard signs because they remind people there's an election coming up. Not so much in some mainland locations, where signs go up eighteen months before an election. But San Juan County's law - given recent events, let's just call it a “guideline” - because it limits the duration of the signage, effectively alerts people that it's almost time to vote.
Of course, the reason courts have struck down San Juan County's, as well as other, political signage laws is that limiting signage infringes on free speech. Like babies and apple pie, free speech is something you don't mess with.
San Juan County's political sign ordinance has never been enforced. Still, it has become a time-honored local tradition to limit the amount of time political signs are displayed, and to politely remove them as soon as possible after an election is over.

(Dkt. No. 12, Ex. A.)

         The County does not dispute that the temporal aspects of former SJCC 18.40.400(C) violated the First Amendment, and has stipulated to its unconstitutionality. (See Dkt. No. 10.) On June 12, 2018, the San Juan County Council adopted interim Ordinance No. 14-2008, which amends SJCC 18.40.400(C) to remove all temporal limitations. (Dkt. ...


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