After informing Oak Harbor mayoral candidate Scott Dudley that his campaign signs violate a section of city code, city officials now acknowledge that they knew at the time the law may in fact be unconstitutional and that a new ordinance is being drafted.

Last week, building official and enforcement officer David Anderson called Dudley and told him his signs do not comply with a city code that limits the posting of signs to a 60-day period before an election.

Dudley, who has had signs up since March, apologized for not knowing the rules and agreed to take them all down. But in another call Monday, this time from City Prosecutor Bill Hawkins, the city told Dudley that it may have been a little too hasty.

“He gave me a heads up that the city would not be enforcing its campaign sign ordinance because there was a question as to its constitutionality,” Dudley said.

Dudley, who is also a city councilman, said he does not resent the situation. In fact, despite a degree of vindication, Dudley was working Monday to take down his signs. Whether it’s constitutional or not, the law is still in effect and he said he plans to follow it.

“Whatever law is on the books, we wish to comply with it. Period,” Dudley said.

Since a story on the sign issue was published in the Whidbey News-Times Saturday, government and media watchdogs have decried the city’s sign restriction as a hit to free speech. Several noted the landmark 1993 Washington Supreme Court ruling of Michael Collier vs. the City of Tacoma.

The case revolves around Tacoma sign ordinances, one of which is a near mirror image of Oak Harbor’s law that puts a 60-day cap on the posting of campaign signs.

The court ruled that Tacoma’s time limit was a violation of both the Washington and U.S. Constitutions as it infringed on the right to political expression.

“We hold unconstitutional those portions of the Tacoma ordinances that impose durational limitations on the preelection posting of political signs,” the court decision said.

The issue over Dudley’s sign came up when Christon Skinner, the founder of the Law Offices of Skinner and Saar and a supporter of mayoral incumbent Jim Slowik, sent a letter to Anderson requesting enforcement of the city’s 60-day rule.

According to City Clerk Connie Wheeler, the law has been in place since June of 1993. It replaced a similar law created in March of 1981 that stipulated a 90-day window before an election.

Hawkins, who conferred with Anderson on the enforcement action, said he was aware of the Collier case at the time, as well as other long-standing arguments concerning free speech and campaign signs.

He said he believed the current ordinance may need some change, but counseled Anderson to move ahead with the enforcement action anyway. A lot of research still needed to be done before he would know for sure what, if any, changes would be recommended to the city council for approval, he said.

By Monday, some of that investigation had been done and Hawkins said he felt he needed to call Dudley and tell him his signs could stay up until the issue was resolved by the council.

However, Hawkins doesn’t agree that the Collier case provides any blanket assertions about government’s ability to place restrictions on campaign signs.

“It doesn’t say that, it doesn’t say that at all,” Hawkins said.

He argues that other case law cited by the court in the Collier case, such as the State vs. Jack Lotze, makes it clear that the government can, in some circumstances, place restrictions on first amendment rights.

Lotze had political billboards on his property that were adjacent to a highway. The state wanted them removed, arguing interests of aesthetics and traffic safety. The Washington Supreme Court agreed, ruling that Lotze’s “speech was not controlled as to content” and that “alternative means of communicating such views were available.”

But in making the Collier decision, the court also recognized that the Lotze case was different and that aesthetics and traffic safety do not always trump the constitutional right to free speech. In this instance, it said, “Tacoma’s claim that it restricts political yard signs to a 60-day period on behalf of a ‘compelling state interest’ in traffic safety lacks evidentiary support.”

Collier was a candidate for Congress in 1990. About 700 of his signs were posted on property around Tacoma. Employees of the city’s public works department collected the signs because they violated an ordinance that limited the posting of campaign signs to 60 days before an election.

According to Hawkins, what the Collier decision makes clear is that Tacoma failed to litigate its case successfully. As in the Lotze case, Oak Harbor could argue that political signs are a traffic hazard and thereby subject to regulation. It’s just a matter of proving their case, he said.

“The question is, can we do that, and I don’t know,” Hawkins said.

Doug Honig, communications director for the American Civil Liberties Union of Washington, has his doubts. The ACLU litigated the case for Collier and Honig said the decision was “crystal clear” on several points.

First, while Collier’s signs were on public and private property, Honig said the court really only addressed the issue of campaign signs on public land, specifically in “parking strips” the section of yard between a yard and the street.

These are areas where candidates traditionally put signs, and the court found that traffic concerns did not justify the time limits imposed by Tacoma’s ordinance. Oak Harbor’s rule for public rights of way goes further with a total ban “and that’s questionable,” Honig said.

Oak Harbor’s 60-day rule, which applies specifically to private property, is even more questionable, he said. According to Honig, the city would have a much greater burden to prove that aesthetic or traffic concerns justified a limitation of free speech on private property.

“It has to have a very strong reason,” Honig said.

Honig said he is requesting that the city contact the ACLU and work with the organization to craft a new ordinance.

Oak Harbor City Attorney Margery Hite is taking the reins on the issue and is expected to present a recommendation to the city council at its July 12 meeting. Hite declined to say what the recommendation would be, explaining it would be inappropriate to comment before the language is finalized.