RECENT DEVELOPMENTS

By Peter A. Buchsbaum

Lots of interest from around the country for state and local government lawyers in the past few months, including the following:

• Free Speech—Big Box Retailers. Both the California and New Jersey Supreme Courts ruled years ago that shopping centers have to allow some political activities because they have replaced Main Streets as an essential forum for political expression. What about big box retail stores? In Lushpaugh v. Home Depot U.S.A., Inc., the California Supreme Court hinted that big box operations might be the modern day equivalent of shopping malls and Main Streets. However, it ducked the issue by holding that Home Depot could reasonably prevent the petitioner from standing next to an exit doorway. It found there were valid safety concerns based on high volumes of customer traffic and fork lifts and scissors lifts using the doorways. Lushpaugh v. Home Depot U.S.A., Inc. (Cal. Ct. App. Nov. 20, 2001), reported in 29 Land Use L. Rep. 193 (Dec. 5, 2001).

• False Claims—Government Grants—Municipal Treble Damage Liability. The False Claims Act imposes treble damages for, among other things, making false statements designed to elicit funds under a government grant. The circuits have recently divided on whether municipalities are liable for such treble damages. The Seventh Circuit held recently that they are. United States ex rel. Chandler v. Cook County, 71 U.S.L.W. 1461 (7th Cir. Jan. 22, 2002). In contrast the Third Circuit, following the lead of the Fifth Circuit, reached the exact opposite conclusion. Dunleavy v. Delaware County, Pa., 70 U.S.L.W. 1461 (3d Cir. Jan. 29, 2002). At issue was whether the normal immunity of municipalities from punitive damages applies to suits brought under the False Claims Act. The circuits have split as to whether a municipality is a "person" subject to suits under that Act. Until this issue is resolved, the normal requirements for care and ethical treatment of government grants by municipalities should receive especially close attention from local governments and their counsel.

• Free Speech—Cross in School Hallway—Equal Access Act. Courts, let alone school districts, have a difficult time determining when religious speech must be permitted in a school. It can be difficult to balance the First Amendment right to freedom of religious expression with the First Amendment Establishment Clause. These rights clashed when a Kenosha, Wisconsin district invited student groups to paint murals in the school’s main hallway. The Bible Club submitted a mural that included a large cross along with a heart, two doves, and bible text. The principal vetoed the cross, which he feared might trigger an Establishment Clause suit and also might leave the district without any ability to disapprove satanic or Nazi murals; in fact, a swastika mural was also rejected. In response, the Seventh Circuit, per Judge Richard A. Posner, agreed that the First Amendment allowed school authorities control over student speech. An angry reaction, i.e., the "hecklers’ veto," which cannot be allowed to interfere with adult freedom of expression—witness anti-segregation marches in the sixties’ South—can, however, be considered by a school district. The court also found that the federal Equal Access Act, which allows for religious activities on a par with other social activities in a school, contained a congruent exception for activities that implicated order and discipline on school premises. Gernetzke v. Kenosha Unified School District, 70 U.S.L.W. 1397 (7th Cir. Dec. 14, 2001).

• Aerial Signs—Preemption. This case is a little more fun. Honolulu, Hawaii, adopted an ordinance banning the use of aircraft for signs or advertising. An entrepreneur, aptly named "Skysign International," challenged the ordinance on the ground that it had a certificate from the Federal Aviation Administration for use of the air space in question. Skysign was fined when it violated the ordinance. While the case was in progress, the FAA, whose regional counsel had originally written that there was preemption, filed an amicus brief supporting the ordinance. On appeal, the Ninth Circuit upheld the ordinance on the ground that the FAA had never made a clear statement of federal intent to displace state police power regulation of advertising. The case is interesting in that it refuses preemption in a field, aviation, in which an observer would almost expect it to be automatic. The court’s deference to local police and zoning powers is noteworthy. Skysign International, Inc., v. City and County of Honolulu (9th Cir. Jan. 9, 2002), reported in 30 Land Use L. Rep. 19 (Jan. 30, 2002).

• Dilapidated Signs—Constitutional Vagueness. Many towns face the problem of poorly maintained signs. In a boost to municipal regulation, the Alabama Supreme Court upheld an ordinance requiring removal of nonconforming signs that have "become dilapidated." The ordinance defines dilapidation as applying to "any sign which is structurally unsound, has defective parts or is in need of painting or maintenance." After certain signs were damaged by Hurricane Georges in 1998, their owner stabilized them with a metal brace and by tying a cable to a tree. When this failed to satisfy the local building inspector, the owner claimed that the ordinance was void for vagueness. Rejecting this claim, the Alabama Supreme Court held that the ordinance was sufficiently definite. Even in Webster’s, the definition of "unsound" gave clear enough notice. Ex parte City of Orange Beach Board of Adjustment (Ala. Dec. 14, 2001), reported in 30 Land Use L. Rep. 14 (Jan. 30, 2002).

• And finally, one of the hottest issues in my home state, and probably others as well, has been the conflict between use of condemnation powers to acquire land for open space and the development of housing, particularly affordable housing. As reported in 30 Land Use L. Rep. 15 (Jan. 30, 2002), a New Jersey trial court has upheld such use of condemnation power, at least when market rate housing is proposed on the tract to be acquired for open space. Still remaining are issues concerning open space acquisition when the tract is slated for Mt. Laurel affordable housing under a plan approved by the State Council on Affordable Housing. These cases have ramifications beyond condemnation. Given the equation drawn between the condemnation power and the police power by Justice Douglas in such opinions as Berman v. Parker and Boraas v. Village of Belle Terre, the outcome of these condemnation cases could affect growth management regulation, as well the right to take.

I keep beseeching you for new and different cases, and I keep waiting. Please e-mail your items to pbuchsbaum@greenbaumlaw.com.

Peter A. Buchsbaum practices law with Greenbaum, Rowe, Smith, Ravins, Davis & Himmel in Woodbridge, New Jersey.