Pinocci v. LongPinocci v. Long
Plaintiffs Randy Pinocci, Jeffrey Pattison, and Ronald V. Hepp have moved the Court for an order issuing a preliminary injunction under
FACTUAL BACKGROUND1
Plaintiff Pinocci is a Montana politician currently serving as a Montana Public Service Commissioner. Plaintiffs Pattison and Hepp are supporters of
The Montana Outdoor Advertising Act (“the Act”),
Pursuant to this authority, MDT has enacted rules allowing for the display of signs providing the names and meeting times of churches, service clubs, and youth
A failure to remove political signage within this time frame triggers administrative proceedings through MDT.
PROCEDURAL BACKGROUND
Plaintiffs brought this action against Malcolm “Mack” Long in his official capacity as Director MDT. Plaintiffs alleged that the durational limit for рolitical signs under
Early in litigation, Long filed a motion to dismiss under
On January 22, 2024, the Court rejected Long’s argument that he was immune from suit under the Eleventh Amendment as to the alleged violations of the First and Fourteenth Amendments but granted Long’s motion to dismiss as to the alleged violation of the Montana Constitution. (Doc. 23 at 8, 12.) The Court also denied the motion to dismiss under
On February 1, 2024, Long filed a motion for settlement conference and continuation of the preliminary injunction hearing. (Doc. 24.) The Court granted the motion and referred the mattеr to Magistrate Judge John Johnston for the sole purpose of conducting a settlement conference. (Doc. 26.) On March 8, 2024, Judge Johnston vacated the scheduled settlement conference based on his finding that mediation would be futile. (Doc. 31.) On March 11, 2024, the Court reset the hearing on the preliminary injunction for April 4, 2024.
On April 2, 2024, Plaintiffs filed a noticе of supplemental authority informing the Court that on April 1, 2024, the MDT held public comment on a proposed revision to
Also on April 2, 2024, Pinocci filed an affidavit notifying the Court that on March 11, 2024, he registered with the Secretary of State as a candidate for Republican nomination for Lieutenant Governor of the State of Montana. (Doc. 34.) Pinocci declared that his “efforts to advance [his] candidacy include obtaining the permission of private landowners to display campaign signs that are within 660 feet of major highways in Montana” and that “[r]egardless of the results of this election cycle, [he] intend[s] to run in the future for public office and will continue seeking to display campaign signs within 660 feet of major highways in Montana as [he has] in all of [his] previous campaigns.” (Id. at 2.)
LEGAL STANDARD
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). Generally, a party seeking a preliminary injunction must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in
ANALYSIS
I. Justiciability
Plaintiffs argue that, if adopted, the proposed revised rule would not render this matter moot for two reasons. First, because “Defendant seeks to penalize Plaintiffs not only for violating Montana’s sign regulation, but also Montana’s sign statute.” (Doc. 33 at 2.) Second, Plaintiffs argue that the repeal of a law by an arm of the executive branch, such as MDT, does not moot a pending challenge to the law. (Id.)
A case becomes moot “‘when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.’” Animal Legal Def. Fund v. U.S. Dep’t of Agric., 933 F.3d 1088, 1092 (9th Cir. 2019) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). “‘The burden of demonstrating mootness is a heavy one.’” Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1095 (9th Cir. 2003) (quoting L.A. Cnty. v. Davis, 440 U.S. 625, 631 (1979)). “Voluntary cessation of challenged conduct moots a case . . . only if it is absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur.” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000).
The revised rule here has not been formalized nor become enforceable. Even if it had, MDT could revert back to the old rule at any time. Likewise, Defendant has not admitted that the regulation is unconstitutional. At the hearing, the Court inquired whether the government conceded that the durational limits were unconstitutional. Counsel for Defеndant responded, “Not necessarily.”
Therefore, it is not “absolutely clear that the alleged wrongful behavior could not be reasonably expected to recur.” Plaintiffs’ claims are justiciable.
II. Preliminary Injunction
Plaintiffs argue that the Court should preliminarily enjoin enforcement of the durational limits on political signage imposed by
A. Likelihood of Success on the Merits
“The First Amendment ‘has its fullest and most urgent application to speech uttered during a campaign for political office.’” Sanders Cnty. Republican Cent. Comm. v. Bullock, 698 F.3d 741, 744–45 (9th Cir. 2012) (quoting Citizens United v. FEC, 558 U.S. 310, 339 (2010). As such, “political speech—including the endorsement of candidates for office—is at the core of speech protected by the First Amendment.” Id. at 745. “Content-based restrictions are presumptively unconstitutional,” United Bhd. of Carpenters v. NLRB, 540 F.3d 957, 964–65 (9th Cir. 2008), and “can only stand if they survive strict scrutiny, ‘which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.’” Reed v. Town of Gilbert, 576 U.S. 155, 171 (2015) (quoting Ariz. Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011)). “When seeking a preliminary injunction in the First Amendmеnt context, the moving party bears the initial burden of making a colorable claim that its First Amendment rights have been infringed, or are threatened with infringement.” Sanders Cnty. Republican Cent. Comm., 698 F.3d at 744. If the moving party is successful, the burden then shifts to the regulating
Plaintiffs argue that they are likely to succeed on the merits of this matter because Montana’s durational limit on political signs is a content-based restriction on speech, and the restriction cannot pass strict scrutiny. (Doc. 4 at 13–17.) At the hearing, counsel for Defendant agreed that the administrative rule places content-based restrictions on signage. Somewhаt paradoxically, counsel then went on to argue that intermediate scrutiny should apply because the administrative rule is an “on premise/off premise regulation” that is content-neutral. However, even if the Court were to determine that intermediate scrutiny was the correct standard of review, Defendant’s admission that it “[does nоt] have an interest in the durational limits” imposed by the administrative rule requires the Court to find that the language is unconstitutional. See City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1475–76 (2022) (“[T]o survive intermediate scrutiny, a restriction on speech or expression must be ‘narrowly tailored to serve a significant governmental interest.’” (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989))).
B. Irreparable Injury
Plaintiffs assert that they have experienced irreparable harm by nature of their chilled political speech. (Doc. 4 at 22.) At the hearing, counsel for Defendant argued thаt Director Long and MDT “immediately and voluntarily suspended enforcement of the durational limits included in the administrative rule” and therefore, Defendant has “made it extremely clear to Plaintiffs that they can continue to display their signs without fear of enforcement of the durational limits.” Counsel for Defendant further contested the necessity of a preliminary injunction because the revised rule—expected to take effect May 11, 2024—eliminates the durational restrictions on political signage.
Though a preliminary injunction may be of little functionality as long аs Flynn is holding up his end of the promise, Plaintiffs have still presented a prohibition on protected First Amendment political speech that constitutes irreparable harm. Therefore, the Court finds that this factor weighs in favor of a preliminary injunction.
C. Balance of Equities and Public Interest
In deciding whether to grant a preliminary injunction, the Court “‘must balance the competing claims оf injury and must consider the effect on each party of the granting or withholding of the requested relief.’” Winter, 555 U.S. at 24 (quoting Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987)). The Court must also determine whether entry of a preliminary injunction promotes the public interest. Id. at 20.
Here, Plaintiffs allege an active prohibition and a chilling effect on their First Amendment right to political speech. If injunctive relief is not granted, “their First Amendment rights will continue being violated.” (Doc. 4 at 22.)
Flynn argues only that “a preliminary injunction would be excessive and unreasonable under present circumstances.” (Doc. 12 at 7.) As previously noted, however, Flynn’s voluntary cessation is not sufficient to ensure that Plaintiffs will
As for public interest, “[c]ourts . . . have consistently recognized the significant public interest in upholding First Amendment principles.” Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012); see also Cox v. McLean, 49 F. Supp. 3d 765, 773 (D. Mont. Sept. 30, 2014). On the other side, “constitutional violations . . . never serve the public interest.” Imperial Sovereign Ct. of Mont. v. Knudsen, No. CV 23-50-BU-BMM, 2023 WL 4847007, at *7 (D. Mont. July 28, 2023). Flynn has not presented any suggestion that the prohibitory law serves the public interest; instead, he аrgues that “there is no defensible rationale” to justify injunctive relief considering the voluntary suspension. (Doc. 12 at 7–8.) As such, entry of a preliminary injunction promotes the public interest.
D. Conclusion
Plaintiffs have established that they are likely to succeed on the merits of their First Amendment claim; (2) that they are likely to suffer irreparable harm in
III. Injunction Bond
Plaintiffs argue that Defendant would not suffer any financial harm as a result of an injunction. (Doc. 4 at 24.) Defendant, for his part, argues that the bond would protect Director Flynn and MDT from damages resulting from the effect of the injunction itself. (Doc. 12 at 9.) However, Defendant fails to articulate what damages he would suffer as a result of an injunction, and the Cоurt is unable to ascertain how Defendant could suffer any damage. As such, the Court
CONCLUSION
Neither Flynn’s promise to forego enforcing the durational limits on political signage, nor the revision of the challenged administrative rule rendеrs the current controversy moot. The Court finds that Plaintiffs are likely to succeed on the merits of their First Amendment Freedom of Speech claim. The Court further finds that, absent a preliminary injunction, Plaintiffs are likely to suffer irreparable harm. Likewise, the balance of equities and public interest weigh in favor of a preliminary injunction. As such, the Court preliminarily enjoins Defendant from enforcing the durational limits of
Accordingly, IT IS ORDERED that the motion for preliminary injunction (Doc. 3) is GRANTED. Defendant is enjoined from enforcing
DATED this 8th day of April, 2024.
Dana L. Christensen, District Judge
United States District Court