Just hours after a federal judge ruled that the City of Salina violated the First Amendment in its enforcement against The Cozy Inn's mural, both sides are considering their options moving forward - including whether the city will appeal and if the restaurant will seek to recover legal fees.
In a statement released Tuesday afternoon, the city acknowledged the mixed nature of Judge Toby Crouse's ruling while indicating officials are evaluating their options.
"On the one hand, the Court agreed with the City and held that the challenged provisions of the City's Sign Code are not unconstitutionally vague," the statement read. "On the other hand, it also agreed with the Plaintiffs and held that the City's definition of the term 'sign' violates the First Amendment, and consequently that 'Salina cannot make any determination as to whether a display is a mural or a sign without violating the First Amendment.'"
The statement continued: "The City is working with its attorneys to evaluate the broader implications of the Court's Order and potential next steps towards resolution of the matter."
Mayor Greg Lenkiewicz said Tuesday that city officials and legal counsel will discuss the ruling during an executive session, most likely on Monday.
"That is a conversation we [commission and counsel] are going to have," Lenkiewicz said when asked if the city would appeal. "That's going to happen in an executive session, most likely on Monday."
Legal Fees in Question
The case has proven costly for Salina, with previous reports indicating the city has spent over $650,000 in litigation fees defending its sign ordinance. Now, The Cozy Inn and its legal team at Kansas Justice Institute are likely to consider whether to pursue recovery of their own legal costs.
When asked if they would sue the city to recoup attorney fees, Kansas Justice Institute litigation director Sam MacRoberts said the organization would discuss options with restaurant owner Steve Howard but emphasized that Wednesday was focused on celebrating the constitutional victory.
"That is a conversation we are going to have with Steve later on," MacRoberts said. "Today is about Steve. We're incredibly happy that Steve gets to finish his mural. We are celebrating this First Amendment victory with him."
Under federal civil rights law, prevailing parties in constitutional cases can seek to recover attorney fees from government defendants, though such awards are discretionary and depend on various factors.
The Court's Mixed Ruling
Judge Crouse's 35-page memorandum and order granted partial summary judgment to both sides. The court found in favor of The Cozy Inn on two First Amendment claims—that Salina's mural-sign distinction constituted unconstitutional content-based discrimination and that the city imposed an improper prior restraint by indefinitely holding Howard's permit application.
However, the court rejected the restaurant's claim that the sign code was unconstitutionally vague and denied its request for a permanent injunction against the city.
The core finding—that Salina's distinction between regulated signs and unregulated murals based on content violates the First Amendment—represents a significant setback for the city's enforcement approach, even as officials noted the court's validation of the code's clarity.
Appeal Window and Process
If the city chooses to appeal, it would have 30 days from the entry of final judgment to file a notice of appeal with the Tenth Circuit Court of Appeals, which typically hears cases in Denver with a three-judge panel.
The mixed nature of the decision could complicate any appeal, as both parties technically prevailed on some claims. For Salina, an appeal would mean continued legal expenses with no guarantee of success, but could also provide clarity on how municipalities can regulate outdoor displays and public art.
For The Cozy Inn, a fee recovery lawsuit could offset the costs of nearly two years of litigation, but would also prolong the legal battle with the hometown city that Howard has said he loves.
"Salina is my hometown, I love it here," Howard said in a statement released Tuesday. "I'm incredibly excited I get to finish my mural."
The Mural's Future
Regardless of the city's next steps, Judge Crouse's declaratory judgment establishes that Salina's content-based distinction between murals and signs is unconstitutional. The ruling also found that the city imposed an improper prior restraint by placing Howard's permit application on indefinite hold.
The decision means The Cozy Inn can move forward with completing its UFO-themed mural depicting "whimsical hamburger-esque flying saucers piloted by aliens attacking The Cozy with blasts of ketchup and mustard," as described in court documents.
The mural has been halted since November 6, 2023, when city officials stopped the work just three days after it began.
What Happens Next
The Salina City Commission's executive session (possibly as soon as Monday) will be closed to the public, as Kansas law allows governing bodies to meet privately to discuss matters with legal counsel.
"The ruling is clear, to the point, and correct," MacRoberts said Tuesday. "Salina's officials don't get to play art critic, picking and choosing which murals stay, and which go. The right to free speech doesn't work that way and never has."
George
