Agenda - Planning Commission - 10/06/2011

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Zoning Bulletin August 10, 2011 I Volume 5 I No. 15 Trask appealed. She argued that she was entitled to relief under § 1983 be- cause: "the actions of [the Borough] in using the ordinance to demand removal of the painting and then file suit again[st] [her] was an overbroad and unconsti- tutional application of the ordinance that had the effect of curtailing her speech." DECISION: Reversed, and matter remanded. The Supreme Court of Alaska held that Trask had "interest -injury stand- ing" and her allegations were sufficient to state a § 1983 claim. The court explained that, in Alaska, a litigant has interest -injury stand- ing when she has "an interest adversely affected by the conduct complained of." The court found that, here, Trask had "articulated enough of an injury to confer interest -injury standing" by: "alleging that the Borough infringed on her right to free speech through an enforcement action that was aimed directly at her." The court noted that, although Trask was not prosecuted, the Borough: ordered her to remove her message; threatened her with cita- tions for violating the ordinance; and filed a complaint against her in which it requested injunctive relief prohibiting her from displaying the message, the imposition of a $200 civil penalty, and attorney's fees and costs. Trask also had alleged that, although she did not remove the message, as a result of the enforcement actions, she did not refresh or modify her roof paintings. As to whether Trask's § 1983 claim was sufficient, the court said that a successful § 1983 claim required: (1) allegations that the plaintiff's (i.e., here, Trask) harm was caused by a constitutional violation; and (2) allegations that the municipality (i.e., here, the Borough) was responsible for that violation. The court found that Trask did allege a set of facts consistent with con- stitutional violation; she alleged a set of facts consistent with stating a claim that her speech was protected: "Trask alleged that the actions of the Borough in applying the ordinance to her were 'an overbroad and uncon- stitutional application of the ordinance that had the effect of curtailing her speech" and that 'fear of further prosecution kept her from making any modifications or performing any upkeep."' The court also found that Trask did allege facts consistent with stating a claim that the Borough was responsible for that violation. The court ex- plained that "[t]o show municipal liability, a litigant must `demonstrate that, through its deliberate conduct, the municipality was the `moving force' be- hind the injury alleged." Here, Trask expressly alleged that the Borough's enforcement of the ordinance against her violated her First Amendment right to free speech. The court found this claim was "clear and straightforward": she set forth facts stating a claim that the Borough was responsible for the constitutional violation. The court concluded by reversing the superior court's dismissal of Trask's C 1983 claim because: Trask had standing to assert a $ 1983 claim; and Trask had alleged a set of facts stating a claim that the Borough violated her right to free speech. See also: State v. Planned Parenthood of Alaska, 35 P.3d 30 (Alaska 2001). © 2011 Thomson Reuters 11