HARRISBURG – The Borough of Camp Hill and three of its officials have rejected accusations that they violated the First Amendment rights of a Republican group and two of its citizens through the borough’s sign ordinance.
Camp Hill Borough Republican Association, Caroline Machiraju and Katherine Pearson first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Oct. 25 versus the Borough of Camp Hill, its Council President Alissa Packer, its Borough Manager Sarah Gibson and its Code Enforcement Officer Colton Weichman. All parties are of Camp Hill.
The purpose of the sign ordinance, adopted by the Camp Hill Borough Council in December 2021, is to regulate how, when and where signs are placed, and not limit what the signs themselves depict.
But the plaintiffs said that the ordinance, which limits the number of signs which may be placed on a citizen’s property – and carries a punitive $1,000 fine per instance, per day for violating it and failing to respond to subsequent code enforcement notices – are unconstitutional under the First Amendment.
Both Machiraju and Pearson were cited for violating the ordinance, as Machiraju had placed more than two political yards signs (the allowable limit prescribed by the ordinance) on her lawn and while Pearson had placed only two signs on her property, she put them out more than 60 days prior to Election Day (also prohibited by the ordinance).
While the initial filing of the suit was accompanied by a motion from the plaintiffs for a temporary restraining order and preliminary injunction, this was rescinded two days later on Oct. 27 without prejudice – through a stipulated injunction agreed to by all parties, but one which stops short of admitting liability.
According to that stipulation, the Borough of Camp Hill decreed it will not enforce the two-sign limit and sign visibility 60 days prior to Election Day-window of the sign ordinance, until Jan. 31 of next year, in order to provide time for litigation.
However, all parties further agreed that the Borough of Camp Hill retains its right to enforce all other provisions of the sign ordinance, including but not limited to restrictions as to the size of signs, and that the agreement does not constitute a waiver of the Borough’s legal defenses.
“Finally, the parties agree that, as to the issuance of this stipulated preliminary injunction order, the plaintiffs’ obligation pursuant to Federal Rule of Civil Procedure 65(c) to provide security in amount that is proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained is waived,” the agreement stated.
A motion hearing in this matter has been scheduled for Jan. 20 before U.S. District Court for the Middle District of Pennsylvania Judge Jennifer P. Wilson.
UPDATE
After an amended complaint was filed in the case on Nov. 14, the defendants answered the complaint two weeks later, on Nov. 28, and denied the allegations that they violated the plaintiffs’ First Amendment rights under the U.S. Constitution.
“Camp Hill Borough’s Sign Ordinance defines and regulates ‘Temporary Signs,’ and ‘Personal Expression Signs.’ The Sign Ordinance does not regulate ‘Political Yard Signs,’ which are not referenced in any portion of the Sign Ordinance. Plaintiffs manufactured the term ‘Political Yard Signs’ and define them as ‘promoting or opposing candidates for elective office and political issues or other similar expressive content.’ In reality, the Camp Hill Borough Sign Ordinance creates no such regulations based on communicative conduct, and the application of the Sign Ordinance’s ‘Personal Expression Signs’ regulations does not depend upon the topic discussed or idea or message expressed,” per the defense’s answer.
“Defendant Weichman in his capacity as Camp Hill Borough Zoning Officer issued a number of courtesy enforcement notices in August of 2022. Over 25 percent of those issued notices relate to provisions of the Sign Ordinance that are not in dispute in the current litigation. Moreover, these notices were indeed a courtesy and not formal ‘Notices of Violation.’ The Zoning Officer understood that issuance of these courtesy notices would be met with questions because this was the first general election cycle in which the new Camp Hill Borough Sign Ordinance would be in effect.”
The defendants also put forth 19 separate affirmative defenses in the case.
“Plaintiffs’ amended complaint fails to state any claims upon which relief can be granted under 42 U.S.C. Sections 1983 and 1988, the First Amendment of the United States Constitution, the Due Process clause of the Constitution, and/or any possible cause of action or claim. Defendants assert all defenses, immunities and limitations of damages available to them under the Civil Rights Act of 1871 and 42 U.S.C. Section 1983. Defendant Borough of Camp Hill’s Sign Ordinance is facially constitutional and does not violate plaintiffs’ and/or the Borough of Camp Hill residents’ First Amendment rights and/or Due Process rights. Defendant Borough of Camp Hill’s Sign Ordinance is content neutral,” the defenses stated, in part.
“Section 805.C.3.d of Defendant Borough of Camp Hill’s Sign Ordinance is not constitutionally void for vagueness. Defendants have not applied the Sign Ordinance in an unconstitutional manner as it relates to plaintiffs. Defendants have not and do not employ any custom and/or policy of applying the Sign Ordinance in a manner that violated plaintiffs’ First Amendment rights. Plaintiffs’ as applied 42 U.S.C. Section 1983 First Amendment violation claims against defendant Borough of Camp Hill and defendants Packer, Gibson and Weichman in their official capacity fail because plaintiffs have not and cannot plead municipal liability pursuant to Monell v. Dept. of Social Services of City of New York.”
The answer further argued that defendants Packer, Gibson and Weichman are entitled to qualified immunity.
For counts of violating the First Amendment to the U.S. Constitution, the plaintiffs are seeking a declaratory judgment of same, a permanent injunction to prohibit the defendants from enforcing the sign ordinances, a declaration that the sign ordinances violated the plaintiffs’ rights, costs, attorney’s fees and such other relief as the Honorable Court deems to be fair and just.
The plaintiffs are represented by Marc A. Scaringi of Scaringi Law, in Harrisburg.
The defendants are represented by Edward Lee Stinnett II, Elizabeth Kramer and Isaac P. Wakefield of Salzmann Hughes, in Camp Hill.
U.S. District Court for the Middle District of Pennsylvania case 1:22-cv-01679
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com