BredenKoetter v. City of Florissant, Missouri et al

Filing 48

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants motion for partial summary judgment onPlaintiffs claims for a declaratory judgment and for a permanent injunction [#31] isGRANTED. IT IS FURTHER ORDERED that Plaintiffs motion for summary judgment [#34] isDENIED. Signed by Honorable Rodney W. Sippel on 2/27/2012. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
M. CHRISTINE BREDENKOETTER,
Plaintiff,
vs.
CITY OF FLORISSANT, et al.,
Defendants.

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Case No. 4:11CV6 RWS

MEMORANDUM AND ORDER
Plaintiff M. Christine BredenKoetter placed a political sign on her front lawn. An official
for Defendant City of Florissant sent Bredenkoetter’s husband a letter stating that the sign should
be removed because it violated a city ordinance. BredenKoetter removed the sign and filed this
lawsuit. She asserts that the city ordinance is a content-based restriction on speech in violation of
the First and Fourteenth Amendments to the Constitution of the United States. She seeks a
declaratory judgment that the ordinance is unconstitutional and requests a permanent injunction
to bar future enforcement of the ordinance. In response to this lawsuit, the City repealed the
ordinance. Both parties have moved for summary judgment. The City asserts that the relief
BredenKoetter sought is moot based on the repeal of the ordinance. Because the relief
BredenKoetter seeks is now moot as a matter of law, I will grant Defendants’ motion for
summary judgment.
Legal Standard
Summary judgment is appropriate if the evidence, viewed in the light most favorable to
the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Lynn v. Deaconess Medical Center,

160 F.3d 484, 486 (8th Cir. 1998)(citing Fed. R. Civ. P. 56(c)). The party seeking summary
judgment bears the initial responsibility of informing the court of the basis of its motion and
identifying those portions of the affidavits, pleadings, depositions, answers to interrogatories, and
admissions on file which it believes demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Citrate, 477 U.S. 317, 323 (1986). When such a motion is made and supported
by the movant, the nonmoving party may not rest on his pleadings but must produce sufficient
evidence to support the existence of the essential elements of his case on which he bears the
burden of proof. Id. at 324. In resisting a properly supported motion for summary judgment, the
plaintiff has an affirmative burden to designate specific facts creating a triable controversy.
Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).
Background
Plaintiff BredenKoetter is resident of Florissant, Missouri. Her husband is Andrew
Podleski. At the time of the incidents that gave rise to this lawsuit, Podleski was a member of
the Florissant City Council. (Docket # 40 Pl.’s Memo. in Opp. Ex. 6-B) On November 14,
2010, BredenKoetter placed a sign on her lawn which read “Elect Andrew Podleski Mayor.” She
“placed the sign in her yard in response to the incumbent mayor’s election announcement and
accompanying political statements that she viewed as critical of her husband, Andrew Podleski.”
(Am. Compl. ¶ 7) On November 19, 2010, Podleski received a letter from the City’s building
commissioner, Defendant Philip Lum. The letter stated that the sign violated Florissant’s City
code, section 520.020 because the sign was placed in the yard more than thirty days before the
mayoral election. The letter also stated that if the sign was not removed “further action” would
be taken. (Doc. # 35 Pl.’s Stat. of Facts at 2) To avoid a citation, BredenKoetter removed the
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sign on November 21, 2010.
In her amended complaint BredenKoetter asserts that section 520.020(5) of Florissant’s
sign ordinance1 violated her First Amendment rights by placing limitations on political signs that
do not apply to non-political signs. That section of the code prohibits the placement of political
signs more that thirty days before an election and allows the Mayor to order the removal of any
sign which violates the ordinance. She asserts that Florissant’s ordinance “discriminates by
allowing the Mayor unbridled discretion to remove political yard signs – but not any other type of
sign -- without any due process or recourse.” (Am. Compl. at ¶ 1) She sued the City of
Florissant, the Mayor of Florissant, and Philip Lum, the City’s building commissioner.
BredenKoetter seeks a declaratory judgment that the limitations on political signs, imposed by
City code section 520.020(5), are unconstitutional under the First and Fourteenth Amendment.
She seeks a permanent injunction to prevent the future enforcement of the ordinance. She also
seeks nominal damages and attorney’s fees.
On June 13, 2011, the City of Florissant passed Ordinance No. 7800 which repealed the
section 520.020(5). Ordinance No. 7800 contained a new section 520.020(5) which eliminated
the restriction of time limits on political signs, eliminated the restriction on the number of signs
per lot, eliminated the power of the mayor to control enforcement of the ordinance, and increased
the size limit of political signs. Even though the June 13, 2007 version of section 520.020(5) had
been repealed, BredenKoetter filed her amended complaint on September 1, 2011, challenging
the repealed section of the code.
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BredenKoetter’s amended complaint states that all references to Florissant’s ordinance
at issue refers to “the ordinance in effect on January 3, 2011, when Plaintiff filed this action.”
That is the June 13, 2007 version of the ordinance.
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Defendants have moved to dismiss BredenKoetter’s claims for a declaratory judgment
and for a permanent injunction. Defendant’s assert these claims are moot based the repeal and
amendment of section 520.020(5). Both parties have filed motions for summary judgment.
Discussion
BredenKoetter’s amended complaint challenges the provisions of an ordinance that is no
longer in force. She filed this lawsuit to challenge the section 520.020(5) of the June 13, 2007
version of the sign ordinance because it provided residents with a limited window of time to
place election signs in their yards. In addition, BredenKoetter challenged the ordinance’s grant
of power to the mayor to enforce the ordinance. The former ordinance also limited the number of
signs per lot.2 BredenKoetter asserts that she wants to place political signs in her front yard but
fears being “prosecuted for constitutionally protected activities.” (Am. Compl. at ¶ 26) All of
these restrictions were removed when section 520.020(5) was repealed and replaced on June 13,
2011.
As a result, BredenKoetter’s claims for a declaratory judgment and for a permanent
injunction are moot. See Powell v. McCormack, 395 U.S. 486, 496 (1969)(a case is moot when

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The current version of the ordinance limits the size of signs to six square feet in certain
zoned areas and to sixteen square feet in other zones. There are no assertions in the amended
complaint that BredenKoetter seeks to erect signs that are larger than these dimensions. Her
amended complaint states that she wants to place “in her yard the sign she placed on or about
November 14, 2010 and other similar signs.” (Am. Compl. at ¶ 26) Her amended complaint is
based on her challenge to the time restrictions and the mayor’s role in sign enforcement. As part
of her motion for summary judgment, BredenKoetter submitted a declaration in which she states
she wants to place political signs that “do not comply with § 520.020(5)’s restrictions in terms of
duration, size, and number on my property.” Assuming without deciding that this declaration
challenges the size limitation imposed by the June 13, 2007 version of the ordinance, the
challenge to the size limitation is also moot because the size limits were increased under the June
13, 2011 amendment to the ordinance.
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the issues presented are no longer ‘live’). See also Rosenstiel v. Rodriguez, 101 F.3d 1544, 1548
(8th Cir. 1996)(an amendment to challenged policies can so change the nature of the dispute to
make it moot); Epp v. Kerrey, 964 F.2d 754, 755 (8th Cir. 1992)(the repeal of a statute moots the
challenge to the statute).
BredenKoetter asserts that this case falls within an exception to the mootness doctrine as
a case that would otherwise evade review. There is not any evidence in this case that the City of
Florissant intends to reenact the repealed ordinance. To the contrary, the City repealed the
challenged ordinance section in response to this lawsuit. Nor is there any evidence that if
Florissant reimposed the repealed ordinance such an action would evade review. As a result, this
matter does not fall into an exception to the mootness doctrine as a case that would evade review.
See Epp, 964 F.2d at 755.
In her motion for summary judgment, BredenKoetter seeks an award of nominal damages
as a result of her having to take down her political sign under threat of an enforcement action
under former section 520.020(5). She also seeks attorney’s fees. BredenKoetter does not offer
any evidence of what amount of nominal damages she seeks. Nor is the request for attorney’s
fees ripe until the issue of whether and how much a nominal damages judgment should be
awarded. I will set a conference by a separate order to address an award of nominal damages and
the availability of attorney’s fees.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion for partial summary judgment on
Plaintiff’s claims for a declaratory judgment and for a permanent injunction [#31] is
GRANTED.
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IT IS FURTHER ORDERED that Plaintiff’s motion for summary judgment [#34] is
DENIED.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 27th day of February, 2012.

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