By MATT KOESTERS
The town of Clarksville is pursuing Indiana Rep. Ed Clere for posting three 32-square-foot political signs on private property inside the town for a month, and Clere and the landowners who allowed the signs could face big fines.
But Clere said the town’s contentions are without merit.
“It’s politically motivated, and it’s unfortunate,” Clere said. “It’s a waste of resources on the part of the town.”
Clere and his attorney, Richard Fox of New Albany, were in Clarksville Town Court on Thursday for an initial hearing on the matter. Clere faces a maximum fine of $2,500 per day per sign, which adds up to more than $200,000. Fox also represents Jesse Ballew and William Cassidy, who allowed Clere to place the signs on properties they own. Ballew and Cassidy also face fines. The signs were placed along Greentree Boulevard, Potters Lane and Blackiston Mill Road.
Clere said the town’s ordinance violation doesn’t apply to his signs, because the signs were not placed in a public right of way.
“The ordinance doesn’t apply to this situation, so I’m not sure why we’re here,” Clere said. “The ordinance talks about maximum square footage of a sign and — the operative word is ‘and’ — being located in a public right of way. So the use of the word ‘and’ there makes it such that the ordinance applies when both conditions are met, and my three signs were on private property.
“The ordinance doesn’t speak to political signs on private property, and even if it did, I would argue that there still needs to be a high level of protection for political speech.”
According to division 200 of Clarksville Municipal code, “Political advertising signs may be 16 square feet and placed in the right of way of town public ways for a period not to exceed 30 days prior to an election and must be removed 48 hours after the election.”
Rebecca Lockard, the town attorney representing Clarksville in the case, disagreed with Clere’s interpretation.
“I understand that’s their position — not the town’s position,” Lockard said. “The town’s position is, it’s 16 square feet no matter where it’s at.”
Clere first learned of the town’s problem with his signs when he received an e-mail and a phone call on the morning of Oct. 8. In an e-mail from an employee of the Clarksville Building Commissioners’ office, Clere was informed that his signs were in violation of the ordinance and that if he did not remove them by the following morning, the town would have them removed. But the town never removed the signs.
“There was some question as to whether they were in the public right of way, because Mr. Ballew seemed to believe they were in the right of way,” Lockard explained. “Mr. Clere said they were not in the public right of way, so I made the legal determination that instead of us going out there and — because if they were in the right of way, we have the right to remove them immediately. If they were on private property, then the ordinance says that we can give a 10-day notice and then we can remove them. Well, by that time, by the time we looked into right of way or not right of way, it would have been after the election, so we just went the citation route.”
The e-mail Clere received also said that certified mail was on its way with a message to similar effect. Clere said he never received any certified mail from the town regarding his signs.
“I finally received a notice to appear [in Clarksville Town Court], just by regular mail,” Clere said.
The town will pursue the maximum fines if the ordinance violation goes to trial, Lockard said.
“If I’m going to trial, I’m asking for the maximum possible penalty,” Lockard said. “If we can work something out before that, then I’m not. But here we have a state legislator who makes laws and expects people to follow those laws, but yet does not want to follow the laws of Clarksville.”
In addition to opposing the fines, Fox also took issue with the way the case was handled from a procedural standpoint. An appearance — in other words, the identity of the lawyer for Clarksville — had not yet been entered, and there should have been a pretrial conference scheduled for the two lawyers to meet before the initial hearing, Fox said.
“The rules do not have, in any way, shape or form, provisions under the civil rules for an initial hearing to bring somebody in to tell them what you’re charged with,” Fox said. “As soon as somebody has — they know who I am. I’ve entered an appearance in this case. I’ve never received an appearance from anybody with the town of Clarksville that says, ‘I am the attorney you’re dealing with.’ That’s required by the civil rules.”
But Fox could have waived the initial hearing, Lockard said.
“But instead he appeared,” Lockard said. “All ordinance violations, whether it’s speeding, whether it’s a dog bite, whether it’s a building violation or a sign violation, they all get set for an initial hearing so that the court has some docket management to set hearings.”
Lockard said that Clere was not being singled out, and that the town had contacted two other politicians whose signs violated the town’s ordinance. Both corrected the problem immediately, Lockard said, while Clere refused.
Clere said he has no problem with the town having a right to establish a reasonable sign ordinance, including for political signage. But he thought the town’s need for regulations on signage should be balanced by the need for protection of political speech, he said.
“I would argue that to be reasonable in terms of protected speech, a sign ordinance limiting political signage would have to take into consideration the surrounding area and the type of signage that’s present in that area,” Clere said. “When you look at the Veterans Parkway area, there are many, many very large signs. So I’m not convinced that it’s reasonable to suggest that a 4-by-8 sign is somehow too large for that area, when there are signs that are far larger than 4-by-8 and permanent in nature.”