My Four Favorite Features of Dan Mandelker

I came to know Professor Dan Mandelker on a personal level twenty years later, when I fell into a role as one of a relatively small number of government-side attorneys deeply committed to defending sign laws in suits brought by billboard companies. A national offensive had been launched by a creative attorney in Georgia who browsed city codes online and looked for the digital version of “dust” in the sign provisions, reflecting lapses in the need to keep them updated to reflect evolving First Amendment standards for content neutrality. When finding a city or county with such a problem, our recurring adversary would form a new billboard company that would apply for billboards that were designed to violate the local sign code. Upon the predictable denial, he would seek to invalidate the entire sign code based on facial invalidity and, if successful, would both obtain permits and then offer to help “fix” the sign code, which would then make it harder for competitors of his client to enter the market. I needed to reach the top of the steep learning curve of court decisions and legal doctrines that govern those disputes. I came to know Bill Brinton of Jacksonville and Randal Morrison of San Diego, who had climbed that learning curve and who knew that Professor Mandelker was a top authority on the subject. Like Bill and Randal, Dan offered sound and free advice and was eager to track the successes and failures. When I came to St. Louis to defend one of my federal district court wins against a billboard company in the Eighth Circuit Court of Appeals,⁴ Dan and Bill both attended the arguments and helped to assess my chances.

The next year, Dan invited me to co-present updates on sign law at annual conferences of the American Planning Association (APA), an organization in which he and I have been quite active. I accepted as often as my practice would permit.

And he reached out to me, as a relatively unknown newcomer to the intersection of land-use law and the First Amendment, to join his team of co-authors of “Street Graphics and the Law,” which is a continuously updated book that he had christened.⁵ (And, of course, I accepted.)

There are four “features” of Dan Mandelker that I am grateful for having come to know.

First, there is “Dan the generous co-author.” Dan was generous about sharing the credit for co-presenting or co-authoring. What he cared the most about was keeping his work up-to-date and keeping it meaningful to readers and listeners. As others who are contributing to this Festschrift also explain in their articles, Dan was happy to see casebooks, treatises, and other publications that he had written in large part, be updated and expanded by practitioners and law faculty who would then receive equal billing.

Second, there is “Dan the taskmaster.” Before I had the chance to work with Dan, I was aware of the traditional model of collaborative writing, under which the most experienced teammates delegate the implementation of their vision to those of us who are less experienced. Dan reversed that model. Particularly for our update to his book “Street Graphics and the Law,” Professor Mandelker was always our taskmaster, setting and enforcing deadlines. In retrospect, it was critical for Dan to have played that role: without it, that book still might be “forthcoming” today.

Third, there is “Dan the even-handed visionary.” Sign law tends to be a subject where advocates, and some scholars, consistently side with either the regulators or the regulated. Public officials, their attorneys who write the regulations, and their constituencies in the communities and in beautification and environmental organizations can be reluctant to recognize overreach where it appears. Sign companies, sign owners, and their attorneys (and their constituencies in property rights and free-speech organizations) can be equally reluctant to recognize why a new, big advertising sign that changes every six seconds might raise safety and aesthetic problems. But Dan continually emphasized the need to foresee the weaknesses in certain kinds of laws and policies and to make those weaknesses an important focus of our teaching and writing.

Every edition of “Street Graphics and the Law” included a model sign code, designed to not only be constitutional on the date of publication but also to survive a few changes in direction from the U.S. Supreme Court.⁶ Dan’s even-handedness was needed because it would help him foresee the next big challenges. For example, as a land-use scholar, he understood the general discretion present in ordinary land-use variance and conditional or special use permit criteria,⁷ and, as a First Amendment scholar, he understood the distrust that courts have for unbridled discretion where free expression is involved.⁸

As an attorney accustomed to writing briefs arguing that a local government had done no wrong, Dan’s approach did not come naturally to me. But when I look back, I recognize that Dan’s lesson was essential to our ability to provide the best preventative advice to planners and other public officials seeking to avoid the courtroom.

Last, but not least, I came to know and to love Dan the role model.

I am now in my early sixties, and will soon celebrate my thirty-fifth year in practice. With each passing year, there are fewer and fewer people around for me to follow as examples for where to go next with my life or with my career. For me, Professor Mandelker has set an example about how to live and to remain sharp.

I looked forward to the opportunities to co-present with Dan at an APA conference because it might include a chance to tour a museum together, as we did in Boston at the Museum of Fine Arts. I have also had the chance to observe Dan’s drive to keep doing what he loves and to do that as long as his body could keep up with him. That, more than anything else, is what I love and appreciate about being fortunate enough to get to know Dan Mandelker.

Endnotes

1. Daniel R. Mandelker & Roger A. Cunningham, Planning and Control of Land Development: Cases and Materials (1979).

2. Sir Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I (2d. ed. 1898); Stephen G. Breyer & Richard B. Stewart, Administrative Law and Regulatory Policy (1979).

3. I practiced with Popham, Haik, Schnobrich and Kaufman from 1988 until early 1993, when six of us from the Popham Haik firm founded Greene Espel PLLP.

4. See Advantage Media, L.L.C. v. City of Eden Prairie, 405 F. Supp. 2d 1037 (D. Minn. 2005), aff’d, 456 F.3d 793 (8th Cir. 2006).

5. Daniel R. Mandelker, John M. Baker & Richard Crawford, Street Graphics and the Law (4th ed. 2015) [hereinafter Street Graphics]; see also Daniel. R. Mandelker & William R. Edwald, Street Graphics and the Law (1987); Daniel R. Mandelker, Andrew Bertucci, & William Ewald, Street Graphics and the Law (rev. ed. 2004).

6. See, e.g., Street Graphics, supra note 5, at 67.

7. See, e. g., Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 778 A.2d 482, 496–97 (N.J. Super. Ct. App. Div. 2001) (citations omitted) (“[I]f the proposed use is inherently beneficial, the applicant’s burden of proof [related to the use variance] is significantly lessened because . . . with an inherently beneficial use, satisfaction of the negative criteria does not depend upon an enhanced quality of proof, but rather upon balancing the positive and negative criteria. When striking the balance, boards must: (1) ‘identify the public interest at stake,’ recognizing that ‘[s]ome uses are more compelling than others’; (2) ‘identify the detrimental effect that will ensue from the grant of the variance’; (3) determine whether the detrimental effect can be mitigated by imposing reasonable conditions on the use; and (4) ‘then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good.’”); Roselawn Cemetery v. City of Roseville, 689 N.W.2d 254, 260 (Minn. Ct. App. 2004) (“It is well settled that protection of general public health, safety and welfare is a valid basis to deny a conditional use permit.”); SP Star Enters., Inc. v. City of Los Angeles, 93 Cal. Rptr. 3d 152, 164 (Ct. App. 2009) (upholding and applying “the provisions of the [Los Angeles Municipal Code] relating to the issuance of a conditional use permit based on a finding the ‘proposed location will be desirable to the public convenience or welfare and will be in harmony with the various elements and objectives of the Master Plan’”).

8. See, e.g., City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755–57 (1988) (“Recognizing the explicit protection accorded speech and the press in the text of the First Amendment, our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license. . . . At the root of this long line of precedent is the time-tested knowledge that in the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.”); Ward v. Rock Against Racism, 491 U.S. 781, 793–94 (1989) (“The grant of discretion that respondent seeks to challenge here is of an entirely different, and lesser, order of magnitude, because respondent does not suggest that city officials enjoy unfettered discretion to deny bandshell permits altogether. Rather, respondent contends only that the city, by exercising what is concededly its right to regulate amplified sound, could choose to provide inadequate sound for performers based on the content of their speech.”); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225–26 (1990) (“Our cases addressing prior restraints have identified two evils that will not be tolerated in such schemes. First, a scheme that places ‘unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.’ . . . Second, a prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible.”).