The first time I saw the name “Dan Mandelker” was in 1984 at a university bookstore in Ann Arbor, Michigan. Dan and Roger Cunningham co-wrote the casebook that the late, great Professor Joseph Sax chose for my land-use law course at the University of Michigan. It was a two-credit course, which explains why relatively few of the chapters are marked up and highlighted in the volume that sits on my bookshelf between two other trophies of my legal education (Pollack and Maitland’s History of English Law and future U.S. Supreme Court Justice Stephen J. Breyer’s casebook on administrative law). Even then I was committed to a “public law” practice, and, after graduation and a federal clerkship, I joined one Minneapolis law firm and then helped found another, where constitutional litigation and adjacent practice areas (such as state land-use law) were encouraged and supported.
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, 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. (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. 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, and, as a First Amendment scholar, he understood the distrust that courts have for unbridled discretion where free expression is involved.
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.
