City of Alexandria tries to deny client’s day in court

January 30, 2015 | By CHRISTINA MARTIN
McLean oral argument

Local counsel Shawn Sheehy, client Scott McLean, and PLF attorney Christina Martin outside the Albert V. Bryan U.S. Courthouse

Yesterday, we had our hearing on the City of Alexandria’s motion to dismiss in McLean v. City of Alexandria. In this case, we are challenging the constitutionality of a City ordinance that makes it illegal to advertise a car for sale while it is parked on a city street. Our client, Scott McLean, received a parking ticket two years ago for placing a “For Sale” sign in his otherwise legally parked car on a street near his home. But the local ordinance doesn’t ban other types of signs on cars. This didn’t seem right to him, so when he wanted to sell his truck, he reached out to PLF for help.

In October, we filed a lawsuit against the City, because the First Amendment protects everyone’s right to speak about commercial interests. Less than one week later, the City issued a press release stating that it would suspend enforcement of the law, while it decides whether it should repeal or change the law. Yesterday, the City asked the court to dismiss our lawsuit as moot, because it temporarily suspended the “For Sale” sign ban. The City argued that Mr. McLean is not currently subject to enforcement of the sign law and that he should sell his car by the time the lawsuit is done.

There are a few obvious problems with the City’s argument. First, the City has not repealed or amended the law – it has only said in a press release that it is reviewing the law and might decide to again start enforcing it. That carries little, if any, legal weight. Second, courts require more than speculation that a law might later be repealed or that a plaintiff’s future circumstances might later make a lawsuit unnecessary. Third, the City’s entire argument relies on the idea that our lawsuit is only seeking protection against future harm. Yet our lawsuit also seeks vindication for the past harm Mr. McLean’s suffered by being subjected to the illegal ordinance.

The court offered several comments that bode well for McLean. For example, when the City’s attorney said that McLean should sell his car before the completion of this lawsuit and before the City ends the law’s suspension, the court pointed out that McLean could get another car and want to sell that in a few months. When the City’s attorney suggested the ordinance would probably be repealed, because it was outdated and because he would be strongly advising the City to repeal it, the court suggested that clients don’t always take the advice of their counsel and thus the law may remain on the books.

Certainly, we hope that the City of Alexandria does take the advice of its counsel. But we are not required to take it on faith that the City Council will do the right thing and get rid of the unconstitutional ordinance. Hopefully the judge sees it the same way. We expect the court’s decision in the next few weeks.