In the wake of Chino having moved to a ward system for the election of its city council members, Chino Hills is on its way toward liberalizing its previously stringent regulations on campaign signage. Both cities were prompted to action by legal considerations, in Chino’s case a threat of legal action and in the case of Chino Hills in reaction to a U.S. Supreme Court ruling.
Chino Hills City Attorney Mark Hensley has advised the Chino Hills City Council that its current political sign ordinance will no longer pass legal muster in the aftermath of a 2015 Supreme Court ruling. The city’s political sign ordinance requires that candidates obtain an election sign permit, tender a $250 deposit before erecting signs, remove the posted signs within ten days after the election and pay the city a $20 fine for every sign removed by city personnel after that deadline,
Hensley and assistant city attorney Elizabeth Calciano believe there are elements in the case of Reed v. Town of Gilbert, which would obviate Chino Hills’ ability to enforce its political sign ordinance. Somewhat paradoxically, the Reed v. Town of Gilbert case did not pertain to political signs, but rather small temporary signs erected by the Good News Community Church and its pastor, Clyde Reed, to alert the community to its services. The Town of Gilbert, Arizona’s sign code, ironically, imposed stricter limits on the size, location, number, and duration of the church’s signs than it did on political, ideological, and homeowners’ association signs. The church filed suit against the town in 2007, arguing that the code – both as written and as applied to its signs – was an unconstitutional restriction on its First Amendment right to free speech. After the Ninth Circuit Court found in favor of the town and its ability to discriminate against signs based on their content, the matter was appealed up to the Supreme Court, which last year ruled in favor of Reed, finding that a governmental entity cannot impose different restrictions against one type of signs versus other types of signs based upon their content. Thus, Hensley and Calciano reason, the City of Chino Hills cannot impose on political signs restrictions that are different than what apply to any other type of signs. Chino Hills’ political sign ordinance is qualitatively different from its commercial sign ordinance, imposing a set of restrictions on the signs candidates use in running for office that are different from those imposed on commercial signs.
Because of the Reed Vs. Gilbert ruling, Hensley and Calciano revisited the totality of the city’s political sign ordinance, considering other elements of the restrictions Chino Hills’ is imposing. As a consequence, Hensley and Calciano found an issue with the requirement for a $250 deposit accompanying the application for the sign permit. Such a requirement could be construed as “prior restraint” to free speech, which the Supreme Court first found unconstitutional in the cases of Near v. Minnesota and New York Times Co. v. United States.
After Hensley and Calciano recommended the city revise the code to comply with the standard inherent in the Reed Vs. Gilbert and other cases, the Chino Hills planning commission voted unanimously June 21 to recommend the changes to the city council, which will take up the matter on July 12.
In the newly drafted political sign ordinance, the provision for the $250 deposit has been removed, the limit on the signs remaining in place no more than ten days after the election has been increased to 30 days and the $20 fine has been displaced.
The new ordinance will maintain restrictions on the size and placement of signs. In particular, the provision prohibiting the posting of signs on public property and in roadway right-of-way will remain in effect. Those enforcement provisions applicable to other signs are also to be applied to political signs.
In neighboring Chino, the city council last month moved to change its at-large city council elections in which all of the city’s voters were eligible to participate every two years to ones that will involve voters voting once every four years in accordance with which of the four council wards they reside within. Each voter will be able to vote only for candidates from his or her ward running for election to represent his or her district. The mayor will continue to be elected at large, that is, in a contest in which all voters in the city are eligible to participate, in elections held corresponding with the presidential general election. The city moved to make that transition after Kevin Shenkman, using the letterhead of his firm, Shenkman & Hughes, sent a letter in December to the City of Chino, noting the city relies upon an at-large election system for electing candidates to the city council. Shenkman charged that “voting within Chino is racially polarized, resulting in minority vote dilution, and therefore Chino’s at large elections are violative of the California Voting Rights Act of 2001. It is our belief Chino’s at-large system dilutes the ability of minority residents – particularly Latinos (a “protected class”) – to elect candidates of their choice or otherwise influence the outcome of Chino’s council elections.” In the letter, Shenkman threatened to sue Chino “on behalf of residents” if Chino’s at-large council system was not replaced by one based on district representation.