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San Diego Minutemen v. California Business

February 7, 2008

SAN DIEGO MINUTEMEN, AN UNINCORPORATED ASSOCIATION, PLAINTIFF,
v.
CALIFORNIA BUSINESS, TRANSPORTATION AND HOUSING AGENCY'S DEPARTMENT OF TRANSPORTATION; DALE BONNER, IN HIS OFFICIAL CAPACITY AS AGENCY DIRECTOR, BUSINESS, TRANSPORTATION AND HOUSING AGENCY; WILL KEMPTON, IN HIS OFFICIAL CAPACITY AS CALTRANS DIRECTOR; PEDRO ORSO-DELGADO, IN HIS OFFICIAL CAPACITY AS CALTRANS DISTRICT DIRECTOR; AND DOES 1 THROUGH 50, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER DENYING MOTION FOR ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND SETTING BRIEFING SCHEDULE FOR MOTION FOR PRELIMINARY INJUNCTION

Pending before the Court is Plaintiff's request for a temporary restraining order. (Docs. # 2, 5). The Court finds this matter suitable for submission on the papers and without oral argument.

BACKGROUND

On February 4, 2008, Plaintiff San Diego Minutemen filed a Complaint against Defendants the California Business, Transportation and Housing Agency's Department of Transportation; Dale Bonner, Agency Director of the California Business, Transportation and Housing Agency; Will Kempton, Director of the California Department of Transportation (CalTrans); and Pedro OrsoDelgado, CalTrans District Director. (Doc. # 1). The Complaint alleges that Defendants violated Plaintiff's constitutional rights to freedom of expression and due process in revoking Plaintiff's Adopt-a-Highway permit and removing Plaintiff's Adopt-a-Highway courtesy sign from its location along Interstate 5 at San Onofre, California. (Doc. # 1). In addition to the Complaint, Plaintiff filed the pending motion for a temporary restraining order and preliminary injunction (Docs. # 2, 5), as well as an ex parte application for an order allowing Plaintiff to take expedited discovery (Doc. # 3).

FACTUAL BACKGROUND

Plaintiff San Diego Minutemen is an association whose mission statement is: To demand the maximum border security and immigration enforcement both locally and at the national level. We oppose illegal immigration in all parts of San Diego County with our activism. We assist and support the U.S. Border Patrol in securing the U.S.-Mexican border from terrorists, gang members, criminals, drugs, and illegal aliens entering the United States. We also assist ICE (Immigration & Customs Enforcement) and local law enforcement in exposing law breaking employers and helping to return illegal aliens to their country of legal residence. We act on behalf of and in accord with the United States Constitution and the Bill of Rights. Declaration of Jeff Schwilk (Schwilk Decl.), ¶ 3.

On September 18, 2007, Plaintiff San Diego Minutemen applied to be part of the Adopt-a-Highway Program administered by Defendant CalTrans. Schwilk Decl., Ex. 5. On or around November 19, 2007, CalTrans admitted Plaintiff into the Adopt-a-High Program, and awarded Plaintiff an Adopt-a-Highway Encroachment Permit. Schwilk Decl., ¶¶ 4-5. The Encroachment Permit identified Plaintiff's litter-removal area as "11-SD-005 PM 66.3-68.3 N/B," which corresponds to an area along Interstate 5 in San Onofre, California. Schwilk Decl., ¶ 8 & Ex. 5. On or about January 17, 2008, members of Plaintiff San Diego Minutemen collected litter along the assigned portion of Interstate 5 in compliance with the Encroachment Permit. Schwilk Decl., ¶ 5 & Ex. 2.

On January 28, 2008, Plaintiff received a letter from Defendant Pedro Orso-Delgado, CalTrans District Director, notifying Plaintiff that Plaintiff's Encroachment Permit "is hereby modified," and that "the related courtesy sign will be removed." Schwilk Decl., Ex. 3. The letter noted that,

The location of your existing Adopt-a-Highway (AAH) permit has raised questions regarding public safety due to the proximity of your assigned highway segment to a U.S. Border Patrol facility that is co-located with the California Highway Patrol (CHP) San Onofre Inspection facility. Your group has also indicated concerns regarding possible vandalism to the courtesy sign displaying your participation in the AAH Program and the release of information relative to the days you will perform the required clean up.

Schwilk Decl., Ex. 3. The letter further noted that Plaintiff's participation in the Adopt-a-Highway Program at the location in San Onofre, "poses a significant risk of disruption to the operation of the State highway, as well as public safety concerns for both the traveling public and the participants in the AAH Program," and that CalTrans was "currently examining allegations of violent behavior and/or advocacy of violence by [Plaintiff's] group." Schwilk Decl., Ex 3. Finally, the letter stated that,

Under the AAH Program eligibility criteria, entities that advocate violence, violation of the law, or discrimination based upon race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, age, sex, or sexual orientation may not participate in the Program.

Schwilk Decl., Ex 3.

On or after January 28, 2008, Defendants removed the Adopt-a-Highway courtesy sign identifying Plaintiff San Diego Minutemen from its location along Interstate 5 in San ...


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