The city of Orangeburg has filed a motion to dismiss a lawsuit alleging it violated a resident's constitutional free speech rights when it removed a political sign from her Custer Court yard.

The city, represented by Columbia attorney Andrew Lindemann, says Custer Court resident Mabel All's lawsuit "lacks standing" because she is prohibited by the restrictive covenants governing her property from erecting political signs, according to a court memorandum requesting dismissal of the case.

The city contends that restrictive covenants allow All to only post signs used in the sale of the property and by law she would be prohibited from placing political signs.

But in a memorandum in opposition to the motion to dismiss, All, who is represented by Columbia attorney Brian Gambrell of Hamilton & Associates, contends a restrictive covenant prohibiting the display of political signs cannot be enforced if "they are indefinite or contravene public policy" such as freedom of speech.

As part of its motion to dismiss, the city also contends All, to show standing, must demonstrate how she will receive relief or redress from litigation and there was "actual or threatened injury."

The plantiff argues there is an injury-in-fact related to constitutional rights, that the city is not a party to the plantiff's property covenants and has no right to invoke them, and that the covenant terminology used is up for interpretation.

While the city's motion to dismiss the case has been opposed, its request of dismissal of defendants including Orangeburg Mayor Paul Miller, the members of Orangeburg City Council, Orangeburg City Administrator John Yow and city attorney James Walsh was conceded by the plantiff.

The city contends the plaintiff had not shown where a claim could be filed against any party except the city as defendant and building code and city zoning official Gene Nelson.

The plantiff still plans to proceed with her case against the city of Orangeburg and Nelson in his individual capacity, with the understanding that discovery could result in renaming other parties.

The ruling related to summary judgment and dismissal of defendants is pending. U.S. District Judge Margaret Seymour is presiding over the case.

Gambrell declined comment except to note he expects a hearing on the summary judgment to be held Jan. 11 in Columbia.

The dismissal request comes about five months after All sued the city of Orangeburg.

She placed a sign supporting Bill Connor for lieutenant governor between her fence and trees next to Custer Court in April.

The city sent All a letter saying political signs can only be displayed 30 days prior to an election. It also said signs cannot be displayed on the road right-of-way and no closer than 5 feet from the right-of-way.

Code enforcement officials removed the sign in early May.

All is seeking an injunction to stop the city from doing it again.

City officials have said the sign ordinance was not designed to limit free speech but to reduce sign clutter in the city.

The sign ordinance is part of zoning ordinance changes. The changes, which are included in the city's comprehensive plan, were finalized in February 2008 after more than a year of consideration.

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T&D Staff Writer Gene Zaleski can be reached by e-mail at gzaleski@timesanddemocrat.com or by phone at 803-533-5551. Discuss this and other stories at TheTandD.com.

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