OCEAN CITY — In the latest salvo in the ongoing battle over Ocean City’s street performers, a federal court judge on Wednesday denied a motion filed by the town to amend or repeal the original ruling on the old busker ordinance replaced last month by a new ordinance.
The motion was reject because no challenges to the town’s new ordinance enacted last month have come forward.
In 2011, Boardwalk spray paint artist Mark Chase filed suit in U.S. District Court against Ocean City, challenging its recently adopted ordinance regarding street performers. Essentially, Chase asserted the town’s ordinance violated First Amendment rights to freedom of expression among other things. U.S. District Court Judge Ellen Hollander ultimately agreed with Chase and issued a preliminary injunction and later Consent Decree clearly outlining how the town must handle the street performer issue on the Boardwalk.
Over three years later, the town adopted a new ordinance addressing street performer issues. It went into effect last month. The new ordinance was crafted after careful study by a task force, ironically on which Chase served. After considerable debate and public hearings, the town adopted the new street performer ordinance that creates a new registration and rotation plan for the performers on the Boardwalk.
In an effort to get out in front of any possible legal challenges to the new ordinance, the town prior to its enactment filed a motion in U.S. District Court seeking the judge’s opinion on the validity of the new ordinance and seeking to amend the terms of the original Consent Decree. The town’s motion was filed in advance of the enactment of the new ordinance as a pre-emptive measure to ensure the new ordinance was constitutional and abided to the spirit of the Consent Decree.
“Modification of this court’s Consent Decree is now appropriate and ripe for the court’s review,” the city’s motion reads. “Enactment of the new ordinance as a result of extensive experience with enforcing the old ordinance presents significant, new factual and legal circumstances that compel modification of this court’s earlier injunction set forth in the Consent Decree.”
However, Hollander on Wednesday issued an opinion on the town’s motion to alter the original Consent Decree, essentially ruling that absent any challenges to the new ordinance, the issue was moot at this time. According to the judge’s opinion, the new ordinance does not alter the terms of the old ordinance, which was subject to the Consent Decree, and those orders remain valid and binding.
“To the extent that the town has enacted a new law, no case or controversy is now pending before the court as to the legality of such new provision,” the opinion reads. “No challenge has been lodged to the new ordinance. In my view, through its motion, the town seeks an advisory opinion from this court as to the legality and constitutionality of the town’s new ordinance. I decline to issue one.”
Hollander ruled quickly on her denial of the town’s motion to amend or alter the original Consent Decree, which was filed in mid-July. Chase, as the plaintiff in the original case and a member of a city-appointed task force that helped craft the new regulations, had until Aug. 5 to respond to the town’s motion, but did not.
“No hearing is necessary to resolve the motion,” the opinion reads. “For the reasons that follow, I shall deny the motion.”
Basically, the town was seeking the judge’s blessing to move forward with the new ordinance and an opinion that it would hold up constitutionally.
“In this case, the court has the authority to declare the case moot and vacate the Consent Decree on grounds that there is no reasonable expectation that enforcement of the new ordinance will violate the First Amendment in the manner that the old ordinance was found to violate the First Amendment,” the motion reads. “That is, this court can rule that there is no reasonable expectation that the harm caused by the old ordinance will be repeated as a result of the enactment of the new ordinance.”
However, Hollander did not comply.
“As indicated, there is no challenge in this case to my earlier rulings concerning the old ordinance, nor has anyone challenged the new ordinance,” the opinion reads. “Rather, the town has asked the court to construe the new ordinance and to declare it constitutional, notwithstanding the absence of a challenge to it. In my view, the issue presented by Ocean City is plainly not justiciable.”
Absent any formal challenge from Chase or any of the other street performers on the Boardwalk, the judge upheld the spirit of the original Consent Decree and declined to support the town’s motion to alter or amend it.
“There is no case or controversy here,” the opinion reads. “Rather, the town seeks an advisory opinion as to the legality of its new ordinance, even though no challenge has been lodged. It is not appropriate for the court to ascend the pulpit and issue a judicial blessing with regard to the new ordinance.”
The town was hoping a favorable opinion of the motion by Hollander would stave off any potential challenges to the new ordinance. However, the judge on Wednesday denied the motion.
“As noted, the town has repealed the old ordinance and it was the old ordinance that was the subject of the court’s earlier rulings,” the opinion reads. “In its place, the town has enacted a new ordinance, carefully screened and vetted by the town’s legislative body, citizens and the town’s attorney. No challenge has been lodged by Mr. Chase or anyone else as to the legality of the new ordinance with respect to the First Amendment or on any other basis.”
