Mrs. Spoonovers sues over mural

Judy Scallen says she would choose jail over backing down

After nearly nine months, the legal battle over a mural on an ice cream business in downtown Whitefish appears to be no closer to resolution than the day it began.

The painting on the west side of Mrs. Spoonovers, at Second Street and Spokane Avenue, is at the center of a web of legal maneuverings that seems to tangle tighter with each passing month.

Last July, Whitefish city attorney John Phelps informed owners Judy and Joel Scallen that the painting violated the city's sign ordinance and must be removed within 15 days. The mural is an advertisement, he said, because it depicts an ice cream cone, which is something sold inside Mrs. Spoonovers. The business had already used up its allotted sign space with other signs.

Whitefish zoning administrator David Taylor ruled Sept. 2 that the mural is an advertising device and not purely a work of art, and the Whitefish Board of Adjustment turned down the Scallens' appeal of Taylor's ruling in November.

In December, the Scallens sued the city and Taylor in Flathead County District Court, seeking unspecified damages and a jury trial.

Whitefish attorney Sharon Morrison argues the city deprived the Scallens of their Constitutional rights, privileges or immunities, and that the Scallens suffered mental and emotional distress, time lost from their business and expenses, including a $990 zoning appeal fee that the Scallens borrowed money to pay.

The city has responded with a counterclaim seeking injunctions of alleged misdemeanor conduct by the Scallens. An injunction is a judicial remedy issued in order to prohibit a party from doing or continuing to do a certain activity, in this case the continued use of the mural.

Morrison subsequently moved to dismiss the counterclaim on the basis that injunctive relief is not available to the city for the enforcement of penal code under Montana law.

But the city claims it isn't trying to use an injunction to enforce a penal law, but rather a zoning regulation.

The city has since turned the lawsuit over to their insurance company. The case is now being handled by Hammer, Hewitt, Jacobs and Floch, of Kalispell.

"Because the city is clearly authorized to injunctive relief under its own ordinances and state law, the Court must deny Scallen's motion," attorney Angela Jacobs wrote in the city's response to the Scallens' motion to dismiss.

The Scallens contend the city can only prosecute Mrs. Spoonovers under Section 1-4-1 of City Code, and that the city cannot seek an injunction remedying the business's violations of the zoning regulations.

Section 1-4-1 provides that each day a violation continues is a separate offense punishable by a fine of $500 or imprisonment of up to six months.

Judy Scallen has said that if this is the case, she would rather go to jail than pay any sort of fine.

"I would choose jail," she said. "I'm not going to back down. This is just too silly."

The city does not dispute that they could criminally prosecute Scallen, although Section 11-7-11 rather than section 1-4-1 would provide the authority for such action. The city contends their right to prosecute does not prevent the city from bringing their counterclaim to the court.

"Scallen's argument is strange to say the lease," Jacobs wrote, "especially since she has been in violation of the zoning regulations for several months."

As the case stands now, Morrison said she hasn't received any response for her motion to dismiss the city's counterclaim. The mural still stands. And the legal battle rages on.