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Ogden City v. Bruce Edwards : ANSWER AND COUNTERCLAIM

05 March 2014 Published in Litigation Materials

Ogden City v. Bruce Edwards

JANELLE P. EURICK (# 8801)
STEPHEN C. CLARK (#4551)
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, UT 84103
Telephone: (801) 521-9862

Attorneys for Defendants

IN THE SECOND JUDICIAL DISTRICT COURT OF WEBER COUNTY
STATE OF UTAH

ANSWER AND COUNTERCLAIM

Civil No. 020900777

Judge Parley Baldwin

OGDEN CITY, a Utah municipal corporation, Plaintiff,

v.

BRUCE EDWARDS, an individual, and WESLAND DEVELOPMENT L.L.C., a Utah limited liability company, Defendants and Counterclaim Plaintiffs,

v. OGDEN CITY and MATTHEW GODFREY, Mayor of Ogden City, Counterclaim Defendants. (Jury Demanded)

ANSWER

Defendants Bruce Edwards and Wesland Development L.L.C., by and through their counsel, hereby answer Plaintiff’s Complaint, and in support thereof allege and state as follows:

1. Defendants admit the allegations in paragraph 1 of the Complaint, except that the Defendant listed as “Westland Development L.L.C.” was legally registered as “Wesland Development L.L.C.”

2. Defendants admit the allegations in paragraph 2 of the Complaint.

3. Defendants admit the allegations in paragraph 3 of the Complaint.

4. Defendants lack knowledge or information sufficient to admit the general allegations in paragraph 4 of the Complaint, and therefore deny them. Defendants specifically deny the allegations in paragraph 4 of the Complaint to the extent they refer to vacant buildings owned by Defendants in Ogden City.

5. Defendants lack knowledge or information sufficient to admit the general allegations in paragraph 5 of the Complaint, and therefore deny them. Defendants specifically deny the allegations in paragraph 5 of the Complaint to the extent they refer to vacant buildings owned by Defendants in Ogden City.

6. Defendants lack knowledge or information sufficient to admit the general allegations in paragraph 6 of the Complaint, and therefore deny them. Defendants specifically deny the allegations in paragraph 6 of the Complaint to the extent they refer to vacant buildings owned by Defendants in Ogden City.

7. Defendants lack knowledge or information sufficient to admit the general allegations in paragraph 7 of the Complaint, and therefore deny them. Defendants specifically deny the allegations in paragraph 7 of the Complaint to the extent they refer to vacant buildings owned by Defendants in Ogden City.

8. Defendants lack knowledge or information sufficient to admit the general allegations in paragraph 8 of the Complaint, and therefore deny them. Defendants specifically deny the allegations in paragraph 8 of the Complaint to the extent they refer to vacant buildings owned by Defendants in Ogden City.

9. Defendants deny the allegations in paragraph 9 of the Complaint.

10. Defendants admit on or about December 4, 2001, the Ogden City Council approved an ordinance that was later signed by the Mayor and became effective on or about December 9, 2001, and that now appears at Section 16-8B-9 et seq. of Ogden’s Municipal Code. Defendants deny the remaining allegations in paragraph 10 of the Complaint.

11. Defendants deny the allegations in paragraph 11 of the Complaint, and allege the ordinance referred to speaks for itself.

12. Defendants lack knowledge or information sufficient to admit the allegations in paragraph 12 of the Complaint, and therefore deny them. Defendants specifically deny the allegations in paragraph 12 of the Complaint to the extent they suggest Ogden City has sought comprehensively, uniformly and neutrally to enforce the ordinance.

13. Defendants admit the allegations in paragraph 13 of the Complaint.

14. Defendants admit the allegations in paragraph 14 of the Complaint.

15. Defendants admit the allegations in paragraph 15 of the Complaint.

16. Defendants admit on or about December 4, 2001, the Ogden City Council approved an ordinance that was later signed by the Mayor and became effective on or about December 9, 2001. Defendants deny the remaining allegations in paragraph 16 of the Complaint.

17. Defendants admit that on or about December 31, 2001, Defendant Edwards placed signs critical of Ogden City in the windows of the vacant building. Defendants otherwise deny the allegations in paragraph 17 of the Complaint.

18. Defendants deny the allegations in paragraph 18 of the Complaint.

19. Defendants deny the allegations in paragraph 19 of the Complaint.

20. Defendants admit the signs are visible from the public streets, public sidewalks, and other properties adjacent to the vacant building. Defendants further admit the signs do not fall within the limited exceptions contained in the ordinance at issue. Defendants deny the remaining allegations in paragraph 20 of the Complaint, and specifically allege the ordinance speaks for itself.

21. Defendants deny the allegations in paragraph 21 of the Complaint.

22. Defendants admit the allegations in paragraph 22 of the Complaint.

23. Defendants admit the allegations in paragraph 23 of the Complaint.

24. Defendants admit the allegations in paragraph 24 of the Complaint.

25. Defendants admit the allegations in paragraph 25 of the Complaint.

26. Defendants lack knowledge or information sufficient to admit the allegations in paragraph 26 of the Complaint, and therefore deny them.

27. Defendants lack knowledge or information sufficient to admit the allegations in paragraph 27 of the Complaint, and therefore deny them.

28. Defendants lack knowledge or information sufficient to admit the allegations in paragraph 28 of the Complaint, and therefore deny them.

29. Defendants repeat and reallege the above allegations and statements as if fully incorporated herein.

30. Defendants lack knowledge or information sufficient to admit the allegations in paragraph 30 of the Complaint, and therefore deny them.

31. Defendants deny the allegations in paragraph 31 of the Complaint.

32. Defendants admit the allegations in paragraph 32 of the Complaint.

33. Defendants admit questions surrounding the constitutionality of the ordinance on its face and as applied to Defendants will not be resolved before the end of the Olympics, but deny the remaining allegations in paragraph 33 of the Complaint.

34. Defendants deny the allegations in paragraph 34 of the Complaint.

35. Defendants deny the allegations in paragraph 35 of the Complaint.

36. Defendants deny the allegations in paragraph 36 of the Complaint.

37. Defendants deny the allegations in paragraph 37 of the Complaint.

WHEREFORE, Defendants respectfully request the Complaint be dismissed in its entirety and Defendants be awarded such other and further relief as the Court deems just and proper in the premises.

COUNTERCLAIM

Counterclaim Plaintiffs Bruce Edwards and Wesland Development L.L.C. (collectively, “Edwards”), by and through counsel, hereby allege and complain as follows:

Nature of Action

1. This is a civil action for damages as well as declaratory and injunctive relief to prevent violation of rights protected by the Constitutions of the United States and the State of Utah. Edwards seeks declaratory relief as to the unconstitutionality of Section 16-8B-9 of Ogden City Ordinance 2001-69 (the “Ordinance”) adopted effective December 9, 2001, on its face and as applied to him. The Ordinance is unconstitutional because it is vague, overbroad and otherwise impermissibly infringes on Edwards’ rights under the First Amendment of the United States Constitution and Article I, Section 15 of the Utah Constitution by prohibiting him from engaging in otherwise lawful and protected speech on his private property. Edwards seeks injunctive relief prohibiting defendants from enforcing the Ordinance. Edwards seeks compensatory and punitive damages caused by Ogden City’s adoption of and efforts to enforce the Ordinance, including the City’s initiation of this lawsuit and imposition of a temporary restraining order with the purpose and effect of suppressing Edwards’ lawful speech. Edwards also seeks attorneys’ fees and court costs.

Jurisdiction and Venue

2. This Court has jurisdiction over Edwards’ state constitutional claims pursuant to Utah Code Ann. §§ 52-4-9(2) and 78-3-4. The Court has concurrent jurisdiction over Edwards’ federal constitutional claims pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343, since they concern the deprivation under color of state law of rights secured by the United States Constitution.

3. Venue is proper in this Court pursuant to Utah Code Ann. §§ 78-13-2 and -7 in that the cause of action arose in Weber County and Ogden City’s principal office is in Weber County.

Parties

4. Bruce Edwards is an adult citizen and resident of Weber County, Utah. Edwards is the authorized agent of Wesland Development L.L.C., which owns various properties in Weber County, Utah, including several vacant properties in downtown Ogden City.

5. Counterclaim Defendant Ogden City (the “City”) is a municipal corporation organized and existing under the laws of the State of Utah.

6. Counterclaim Defendant Matthew Godfrey (the “Mayor”) is Mayor of Ogden City. He is sued in both his official and his individual capacities. The Mayor’s powers and duties include supervising the administration and enforcement of all laws and ordinances of the City. The Mayor is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this Counterclaim.

FACTUAL BACKGROUND

7. Edwards and Ogden City officials are embroiled in a longstanding dispute involving, among other things, Edwards’ vacant buildings in the City. Frustrated at his inability to address these disputes productively through official channels, Edwards resorted to a different form of lawfully petitioning for redress of his grievances with the City. Specifically, beginning in late 2000, Edwards posted various signs critical of Ogden City in one or more vacant buildings he owns on lower 25th Street in downtown Ogden. Ogden City responded to this act of free speech on private property by filing numerous unfounded charges against Edwards alleging violations of various City ordinances in those buildings.

8. On or about October 9, 2001, an Ogden City prosecutor contacted an attorney who represents Edwards, requested that Edwards’ signs be removed, and suggested the removal of the signs would facilitate resolution of the pending charges. On information and belief, the City’s objective was to suppress Edwards’ speech critical of the City. On information and belief, the subject of Edwards’ signs and the City’s desire to compel Edwards to remove the signs in order to suppress his speech critical of the City was discussed at an Ogden City Council meeting held on or about that same date.

9. On or about October 10, 2001, the City proposed that Edwards remove the signs for a period of 6 months pending efforts to resolve the underlying issues between Edwards and the City. On information and belief, the City’s objective was to suppress speech critical of the City during preparations for and activities surrounding the Olympic Winter Games to be held in and around the City in February 2002. Edwards declined to remove his signs for a period of 6 months, but agreed to remove the signs for 60 days. The City subsequently agreed to Edwards’ proposal. The court before which the alleged violations of City ordinances were pending entered the parties’ agreement as an order, and Edwards removed the signs.

10. Pursuant to the above agreement, Edwards sought to address his complaints with the City during the agreed 60-day period. Rather than seeking to address Edwards’ complaints in good faith, however, Ogden City sought alternative means to suppress Edwards’ speech. Specifically, on or about December 9, 2001, Ogden City adopted the Ordinance.

11. The Ordinance provides in part: “A vacant building and the premises shall be kept free of all interior or exterior signs, displays or graffiti [including “any presentation of words, letters, figures, designs, pictures or colors, which are not a part of the architectural design of the building”] visible from adjacent public streets, sidewalk or adjacent properties,” subject only to limited exceptions. Ogden Mun. Code § 16-8B-9(G)(2). It also prohibits obscuring the windows of a vacant building “in a manner which obstructs visibility into the interior of the building,” subject to certain exceptions. Id. § 16-8B-9(J).

12. Ogden City initiated a criminal prosecution against Edwards for violating the Ordinance, initiated the instant civil action, and sought and obtained a temporary restraining order requiring Edwards to remove his signs, claiming they detracted from Ogden City’s efforts “to present itself as a clean, safe, and desirous [sic] environment for parents to raise families and businesses to enjoy prosperity.”

13. On information and belief, the purpose and effect of Ogden City’s actions against Edwards as alleged herein were to suppress speech critical of the City so that the City could present its own self-serving message “untainted” by dissenting opinions.

First Cause of Action
(Declaratory and Injunctive Relief to Enforce United States Constitution)

14. Edwards incorporates herein by this reference paragraphs 1 through 13 as if set forth fully herein.

15. The Ordinance is vague and unclear such as to chill the exercise of free expression protected by the First Amendment to the United States Constitution.

16. The Ordinance, on its face, prohibits legal and truthful expressive conduct based upon the content of the expression. The Ordinance, as applied to Edwards, suppresses viewpoints with which the City disagrees on subjects the City itself is free to address by means similar to those prohibited to others.

17. The Ordinance is substantially overbroad in that it prohibits legal conduct protected by the United States Constitution, including lawful speech on private property.

18. No compelling state interest justifies the restriction of Edwards’ right to expressive activity, and the Ordinance unconstitutionally chills and/or silences otherwise lawful and protected speech without justification either as a valid time, place, and manner restriction or as a regulation that directly advances a substantial governmental interest without being more extensive than necessary to serve that interest.

19. Edwards is entitled to declaratory relief that the Ordinance is in violation of the pro­hibition against government interference with free expression protected by the First Amendment to the United States Constitution.

20. Edwards is entitled to injunctive relief that Counterclaim Defendants not enforce the Ordinance because it is in violation of the Free Expression Clause of the United States Constitution.

21. Edwards is entitled to compensatory damages, including the costs of defending criminal and civil actions against him under the Ordinance, and to punitive damages because the City’s and the Mayor’s conduct as alleged herein is outrageous and demonstrates callous indifference to Edwards’ federally protected rights.

Second Cause of Action
(Declaratory and Injunctive Relief to Enforce Utah Constitution)

22. Edwards incorporates herein by this reference paragraphs 1 through 21 as if set forth fully herein.

23. The Ordinance is vague and unclear such as to chill the exercise of free expression protected by Article I Section 15 of the Utah Constitution.

24. The Ordinance prohibits legal and truthful expressive conduct based upon the content of the expression. The Ordinance, as applied to Edwards, suppresses viewpoints with which the City disagrees on subjects the City itself is free to address by means similar to those prohibited to others.

25. The Ordinance is substantially overbroad in that it prohibits legal conduct protected by the Utah Constitution, including lawful speech on private property.

26. No compelling state interest justifies the restriction of Edwards’ right to expressive activity, and the Ordinance unconstitutionally chills and/or silences otherwise lawful and protected speech without justification either as a valid time, place, and manner restriction or as a regulation that directly advances a substantial governmental interest without being more extensive than necessary to serve that interest.

27. Edwards is entitled to declaratory relief that the Ordinance is in violation of the pro­hibition against government interference with free expression protected by the Utah Constitution.

28. Edwards is entitled to injunctive relief that Counterclaim Defendants not enforce the Ordinance because it is in violation of the Article I Section 15 of the Utah Constitution.

29. Edwards is entitled to compensatory damages, including the costs of defending criminal and civil actions against him under the Ordinance, and to punitive damages because the City’s and the Mayor’s conduct as alleged herein is outrageous and demonstrates callous indifference to Edwards’ rights protected by the Utah Constitution.

Wherefore, Edwards prays for relief as follows:

a. For declaratory judgment that the Ordinance, both facially and as applied, violates the First Amendment of the United States Constitution;

b. For declaratory judgment that the Ordinance, both facially and as applied, violates Article I, Section 15 of the Utah Constitution;

c. For a preliminary and permanent injunction enjoining Counterclaim Defendants from enforcing the Ordinance;

d. For compensatory and punitive damages in an amount to be determined at trial;

e. For reasonable attorneys’ fees and costs in pursuing this action; and

f. For such other and further relief as the Court deems just and proper.

Edwards demands a jury for all claims properly triable to a jury.

DATED this 26 day of February 2002.

American Civil Liberties Union of Utah, Inc.

By Stephen C. Clark
Attorneys for Defendants/Counterclaim Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing ANSWER AND COUNTERCLAIM was served this 26th day of February, 2002, by placing the same in the United States mail, postage prepaid, addressed as follows:

Norman L. Ashton
Andrea W. Lockwood
OGDEN CITY ATTORNEY’S OFFICE
2549 Washington Boulevard, Suite 800
Ogden, Utah 84401

Attorneys for Plaintiff/Counterclaim Defendants
Stephen C. Clark