United States District Court, S.D. Alabama, Southern Division
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Students for Life USA, Plaintiff: Norman J. Gale, Jr., LEAD ATTORNEY, Norman J Gale Jr Attorney at Law LLC, Mobile, AL; David A. Cortman, PRO HAC VICE, Lawrenceville, GA; David Jonathan Hacker, PRO HAC VICE, Folsom, CA; Kevin Hayden Theriot, PRO HAC VICE, Leawood, KS; Travis Christopher Barham, Lawrenceville, GA.
For Tony G. Waldrop, John W. Smith, Michael A. Mitchell, John W. Steadman, Defendants: Windy Cockrell Bitzer, LEAD ATTORNEY, Hand Arendall, L.L.C., Mobile, AL; Christine Elizabeth H. Hart, Mobile, AL.
WILLIAM H. STEELE, CHIEF UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the defendants' motion to dismiss. (Doc. 31). The parties have filed briefs in support of their respective positions, (Docs. 31, 41, 43), and the motion is ripe for resolution. After careful consideration, the Court concludes that the motion is due to be granted in part and denied in part.
According to the amended complaint, (Doc. 29), the plaintiff is a student organization at the University of South Alabama (" the University" ). The plaintiff seeks to promote its pro-life message through flyers, signs, peaceful demonstrations and other means. In October 2013 and again in February 2014, the plaintiff sought permission to place a " cemetery of innocents" at various campus locations, including an area between an academic building (" Shelby Hall" ) and two public roads (" Old Shell Road" and " University Boulevard" ). Permission to use such locations was denied by University officials. The plaintiff ultimately utilized an area around the student center (" the Speech Zone" ) that the University's policy (" the First Policy" ) identified as the only campus location permitted to be used for student speech. In August 2014, the University allegedly adopted another policy (" the Second Policy" ), which expands the locations that can be used for student speech but which continues to prohibit such speech within the campus perimeter (" the Perimeter" ), which includes most areas between the street side of campus buildings and the sidewalks paralleling Old Shell Road and University Boulevard. ( Id. at 4, 11, 13-20).
The defendants are the University's president, Tony Waldrop; its vice-president for student affairs, John Smith; its assistant vice-president for student affairs and dean of the plaintiff, Michael Mitchell; and the dean of its college of engineering, John Steadman. All four are sued in both their official and their individual capacities. (Doc. 29 at 1).
Count One of the amended complaint alleges that the First and Second Policies violate the plaintiff's First Amendment rights of free speech. Counts Two and Three allege that the First and Second Policies violate the plaintiff's due process and equal protection rights, respectively. The amended complaint seeks as relief: a declaration that the Policies violate the plaintiff's constitutional rights; an injunction against enforcement of the Policies and associated practices; an award of nominal damages; and attorney's fees and costs. (Doc. 29 at 26-38).
The defendants seek the dismissal of: (1) all claims regarding the First Policy; (2) all claims against them in their individual capacities; and (3) all as-applied challenges
to the Second Policy. (Doc. 31 at 13).
" There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). The Court's review on this motion to dismiss is similarly limited to those arguments the parties have expressly advanced. E.g., Jurich v. Compass Marine, Inc., 906 F.Supp.2d 1225, 1228 (S.D. Ala. 2012). Moreover, " a passing reference to an issue in a brief [is] insufficient to properly raise that issue," Transamerica Leasing, Inc. v. Institute of London Underwriters, 430 F.3d 1326, 1331 n.4 (11th Cir. 2005), and the Court will not supply legal or analytical support the parties have declined to offer themselves.
I. First Policy.
The defendants argue that the plaintiff's challenge to the First Policy is moot and that it violates the Eleventh Amendment.
The defendants argue that the plaintiff's challenge to the First Policy has been mooted by adoption of the Second Policy. (Doc. 31 at 9-11). " [A] case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief." Troiano v. Supervisor of Elections, 382 F.3d 1276, 1282 (11th Cir. 2004) (internal quotes omitted). If a case is or becomes moot, " dismissal is required because mootness is jurisdictional." Id. (internal quotes omitted). " Whether a case is moot is a question of law ...." Id.
Mootness may occur when the defendant voluntarily ceases the challenged conduct. However, " [a] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Doe v. Wooten, 747 F.3d 1317, 1322 (11th Cir. 2014) (internal quotes omitted). The defendants here are government actors, but " [t]he Supreme Court has applied this same standard in cases involving government actors." Id.
Unlike a private defendant, however, a government actor can raise a " rebuttable presumption that the objectionable behavior will not recur." Troiano, 382 F.3d at 1283 (emphasis in original). Thus, " a challenge to a government policy that has been unambiguously terminated will be moot in the absence of some reasonable basis to believe that the policy will be reinstated if the suit is terminated." Id. at 1285. To obtain the benefit of the rebuttable presumption, the government defendant bears the " initial burden" to show that the offending policy has been unambiguously terminated. Doe, 747 F.3d at 1323.
" In general, the repeal of a challenged statute is one of those events that makes it absolutely clear that the allegedly wrongful behavior ... could not reasonably be expected to recur." Harrell v. Florida Bar, 608 F.3d 1241, 1265 (11th Cir. 2010) (internal quotes omitted). However, the unambiguous termination of a challenged policy can be established, and the consequent rebuttable presumption arise, " [e]ven short of so weighty a legislative act." Id. at 1266. The " repea[l] or amend[ment] [of] a challenged statute or policy [is] often a clear indicator of unambiguous
termination." Doe, 747 F.3d at 1322.
The defendants have offered no affidavit for the proposition that the First Policy has been repealed or otherwise unambiguously terminated. They have, however, submitted uncontroverted evidence that the First Policy, which appeared in the 2013-2014 student handbook, was replaced by the Second Policy in the 2014-2015 student handbook. (Doc. 29-10; Doc. 31 at 3 n.5 (providing online citation)). The student handbook is a joint publication of the student government association and the University, (Doc. 29-4 at 3), and it contains " the most current information at the time of publication." ( Id.). Moreover, the Second Policy covers the same issues concerning expressive activity as the First Policy. The plaintiff denies that the Second Policy has been adopted and the First Policy " repealed," (Doc. 41 at 6), but it offers no explanation how, under the circumstances just described, the First Policy could be anything other than terminated. Because it is clear that the Second Policy is now in force, and because it is clear that the First Policy is not, and could not be, simultaneously in force, the Court finds that the First Policy has been unambiguously terminated. Whether it was terminated by formal repeal (which is unknown) or by supersession (which is obvious) is irrelevant.
Because the defendants have met their initial burden of showing that the First Policy has been unambiguously terminated, the plaintiff's challenge to that policy is moot unless there is " some reasonable basis to believe that the policy will be reinstated if the suit is terminated." Troiano, 382 F.3d at 1285. " Mere speculation that the [defendant] will return to its previous ways is no substitute for concrete evidence of secret intentions." National Advertising Co. v. City of Miami, 402 F.3d 1329, 1334 (11th Cir. 2005).
" [W]here the circumstances surrounding the cessation suggest that the defendant is attempting to manipulate the court's jurisdiction to insulate a favorable decision from review, [citations omitted], courts will not deem a controversy moot." Harrell, 608 F.3d at 1266 (internal quotes omitted). " More generally, the timing and content of a voluntary decision to cease a challenged activity are critical in determining the motive for the cessation and therefore whether there is any reasonable expectation ... that the alleged violation will recur." Id. (internal quotes omitted). " As for timing, a defendant's cessation before receiving notice of a legal challenge weighs in favor of mootness, [citation omitted], while cessation that occurs late in the game will make a court more skeptical of voluntary changes that have been made." Id. (internal quotes omitted). " With respect to content, we look for a well-reasoned justification for the cessation as evidence that the ceasing party intends to hold steady in its revised ... course." Id.;
accord Rich v. Secretary, Florida Department of Corrections, 716 F.3d 525, 532 (11th Cir. 2013) (" [W]e look to whether the change in government policy or conduct appears to be the result of substantial deliberation." ) (internal quotes omitted). In addition, " we ask whether the government has consistently applied a new policy or adhered to a new course of conduct." Id. (internal quotes omitted). Finally, it may be significant whether the defendant " promised not to resume the prior practice." Id. While " [t]hese factors are not exhaustive," Doe, 747 F.3d at 1323, the plaintiff relies on them and no others to establish a reasonable basis to believe the First Policy will be reinstated if the action is dismissed. (Doc. 41 at 16-17).
As for timing, the Second Policy was adopted on or about August 8, 2014, approximately four months after suit was filed and the University's counsel notified of the suit. (Doc. 22; Doc. 29, ¶ 153). The plaintiff stresses that the First Policy was in effect when the defendants " receiv[ed] notice of a legal challenge," Harrell, 608 F.3d at 1266, but it ignores the promptness with which the defendants responded to that notice by replacing the First Policy with the Second. The change was not made " late in the game," id., but at a time when all that had occurred in this litigation was extended settlement negotiations (instigated by the plaintiff contemporaneously with filing the complaint and continued by the plaintiff throughout) and service of process (which occurred barely three weeks before the Second Policy was adopted). (Docs. 22, 23). This timing indicates a genuine effort to resolve the dispute informally and an efficient development of a comprehensive policy covering a complex subject; it does not suggest a subterfuge to deprive the Court of jurisdiction so that the defendants can then replace the Second Policy with the First Policy.
As for content, the plaintiff itself, in its amended complaint, articulates the defendants' " well-reasoned justification" for replacing the First Policy: " Defendant Waldrop instructed the Defendants to change and alter the First Policy to comply with constitutional mandates ...." (Doc. 29, ¶ 29). There is no suggestion here that the defendants replaced the First Policy with the crass motive of gaming the system, obtaining dismissal, and then reverting to old ways; instead, the plaintiff credits the defendants with the honorable motive of upholding the Constitution.
The plaintiff denies that the defendants adopted the Second Policy as a " result of substantial deliberation," (Doc. 41 at 17), but its own allegations again belie such a contention. According to the amended complaint, the Second Policy was the result of a " process," one in which three of the defendants were personally involved. (Doc. 29, ¶ ¶ 28, 39, 56). In addition, the length and detail of the Second Policy, and the multiple changes it makes from the First Policy, reflect that some degree of care attended its creation. The plaintiff insists the Second Policy " materialized like a bolt out of the blue," but the case on which it relies for this colorful imagery involved a policy that was unwritten, unannounced and unknown ...