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Inc. of Georgia v. City of Sandy Springs

United States Court of Appeals, Eleventh Circuit

August 23, 2017

CITY OF SANDY SPRINGS, GEORGIA, Defendant-Appellee. MELISSA DAVENPORT, MARSHALL G. HENRY, Intervenors-Plaintiffs-Appellants,

         Appeal from the United States District Court for the Northern District of Georgia D.C. No. 1:13-cv-03573-HLM


          ANDERSON, Circuit Judge.

         We granted rehearing en banc to review the constitutionality of a municipal ordinance prohibiting the sale of sexual devices in light of several recent Supreme Court decisions which, it was argued, call into question the continued vitality of this Court's decision in Williams v. Attorney General (Williams IV), 378 F.3d 1232 (11th Cir. 2004). After we agreed to take the case en banc, the defendant City repealed the challenged portion of its municipal code and, thus, we are confronted with the threshold jurisdictional question of mootness. Because we see no reasonable basis for concluding that the ordinance will be reenacted and because a prayer for nominal damages, by itself, is insufficient to satisfy Article III's jurisdictional requirements, this case is moot. Accordingly, the appeal must be dismissed.

         I. Background

         In 2009, the City of Sandy Springs, Georgia, (the "City") enacted into law several provisions that, inter alia, prohibited the sale of sexual devices within the City. Specifically, Ordinance 2009-04-24 (the "Ordinance"), codified at Section 38-120 of the City's Code of Ordinances (the "Code"), criminalized the commercial distribution of obscene material, which it defined to include "[a]ny device designed or marketed as useful primarily for the stimulation of human genital organs." Sandy Springs, Ga., Code of Ordinances § 38-120(c).

         Shortly after its passage, a group of businesses, including, as relevant here, plaintiff-appellant Fantastic Visuals, LLC, d/b/a Inserection ("Inserection"), [1]brought suit to challenge the Ordinance and several other Code provisions. Inserection is an adult bookstore in Sandy Springs that sells sexually explicit materials, including sexual devices. After the City moved for summary judgment, the district court issued an order severing Inserection's challenge to the Ordinance's prohibition on the sale of sexual devices from the remainder of the pending challenges to other Code provisions. As a result, this appeal involves only a challenge to the City's ban on the sale of sexual devices.

         Severing the two challenges allowed additional affected parties to intervene in the instant case without slowing the progress of the other litigation. Accordingly, the district court granted a timely motion to intervene by intervenors-appellants Melissa Davenport ("Davenport") and Marshall G. Henry ("Henry"). Davenport is a Georgia resident who suffers from multiple sclerosis and uses sexual devices with her husband to facilitate intimacy. She seeks to purchase sexual devices in Sandy Springs for her own use and to sell sexual devices to others in Sandy Springs who suffer from the same or a similar condition. Henry, also a Georgia resident, is an artist who uses sexual devices in his artwork. He seeks to purchase sexual devices in Sandy Springs for his own private, sexual activity and for use in his artwork. He also seeks to sell his artwork in the City. Inserection, Davenport, and Henry (collectively, "Appellants") raised several challenges to the Ordinance arising under both the United States and Georgia Constitutions, including, as relevant here, a Fourteenth Amendment Due Process claim.[2] Appellants specifically requested declaratory and injunctive relief striking down the Ordinance as unconstitutional and permanently enjoining its enforcement. Additionally, both Davenport and Henry requested an award of nominal damages against the City.[3]

         The City moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The district court granted the City's motion and entered an order upholding the Ordinance. Appellants filed a timely notice of appeal, arguing that the district court erred in entering judgment in favor of the City. A panel of this Court, after briefing and oral argument, found that the district court committed no reversible error and affirmed. Flanigan's Enters., Inc. of Ga. v. City of Sandy Springs, 831 F.3d 1342, 1344 (11th Cir. 2016), vacated, - F.3d -, 2017 WL 975958 (11th Cir. Mar. 14, 2017). The panel held that it was bound to follow the holding in Williams IV and suggested that Appellants seek rehearing en banc. Id. at 1348 ("Therefore, unless and until our holding in Williams IV is overruled en banc, or by the Supreme Court, we are bound to follow it. . . . Appellants are free to petition the court to reconsider our decision en banc, and we encourage them to do so.").

         On March 14, 2017, a majority of the judges of this Court in active service voted in favor of granting rehearing en banc and the panel opinion was, accordingly, vacated. On March 21, 2017-one week after rehearing was granted-the City Council unanimously voted to repeal the portion of its Ordinance at issue in this appeal. See Sandy Springs, Ga., Ordinance 2017-03-05 (Mar. 21, 2017). Citing this repeal, the City subsequently filed a motion to dismiss for mootness in which it, through its attorney, expressly "disavow[ed] any intent to adopt such a regulation in the future." The parties submitted further briefing on the issue of mootness and the City's motion was carried with the case to oral argument.

         After briefing on the merits had been completed, oral argument was held before the en banc Court on June 6, 2017. On the same day-in a move it argues was designed to "endorse" its attorney's representations at oral argument-the City passed a resolution regarding the now-repealed Ordinance. See Sandy Springs, Ga., Resolution 2017-06-85 (June 6, 2017). In this resolution, which also passed unanimously, the City: (1) noted that the Ordinance "was never enforced during the years that it was in effect;" (2) "disavow[ed] any intent to reenact [the Ordinance] or any similar regulation;" and (3) claimed that the repeal of the Ordinance "eliminated an inconsistency in the City's Code between the [now-repealed] prohibition on the sale of obscene devices and the City's zoning and licensing ordinances that license and regulate stores which sell them." Moreover, the City conceded that its interest in minimizing the secondary effects of the sale of sexual devices-one of the two grounds on which the City had defended the Ordinance-was effectively served by its existing zoning and licensing regulations. Pursuant to, and in compliance with, Rule 28(j) of the Federal Rules of Appellate Procedure, the City advised the Court of its resolution on the same day it was passed.

         II. Standard of Review

         We consider the question of mootness de novo. Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328 (11th Cir. 2004).

         III. Discussion

         It is well established that "[u]nder Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253 (1990). At a minimum, this requirement means that "a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Id. at 477, 110 S.Ct. at 1253. Moreover, this "actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 1068 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334 (1975)). As a result, the Supreme Court has routinely cautioned that a case becomes moot "if an event occurs while a case is pending on appeal that makes it impossible for the court to grant 'any effectual relief whatever' to a prevailing party." Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 449 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133 (1895)). Thus, even a once-justiciable case becomes moot and must be dismissed "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951 (1969).

         Addressing our jurisdiction in the instant case requires us to undertake two related inquires. First, we must ask whether the City's repeal of the relevant portion of the Ordinance has rendered moot Appellants' claims for declaratory and injunctive relief. If those claims are moot, we must then consider whether their prayer for nominal damages is sufficient to save an otherwise non-justiciable case. We address each in turn.

          A. Declaratory and Injunctive Relief

         As discussed above, a case generally becomes moot and must be dismissed, even if already on appeal, "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Id. at 496, 89 S.Ct. at 1951. The doctrine of voluntary cessation, however, provides an important exception to this general rule. Indeed, as the Supreme Court has long recognized, the "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897 (1953). Without this exception, the federal courts would be compelled to dismiss a case while leaving the defendant "free to return to his old ways." Id. at 632, 73 S.Ct. at 897.

         However, the voluntary cessation exception to the mootness doctrine does not apply where "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 708 (2000) (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 364 (1968)). Thus, intervening events will render a case moot only when we have "no 'reasonable expectation' that the challenged practice will resume after the lawsuit is dismissed." Jews for Jesus, Inc. v. Hillsborough Cty. Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383 (1979)). The test for determining that no such reasonable expectation exists is ordinarily a "stringent" one and, accordingly, the party asserting mootness generally bears a "'heavy burden of persua[ding]' the court that the challenged conduct cannot reasonably be expected to start up again." Laidlaw, 528 U.S. at 189, 120 S.Ct. at 708 (alteration in original) (quoting Concentrated Phosphate, 393 U.S. at 203, 89 S.Ct. at 364).

         While it is true that the burden of proving mootness generally falls heavily on the party asserting it, "governmental entities and officials have been given considerably more leeway than private parties in the presumption that they are unlikely to resume illegal activities." Coral Springs, 371 F.3d at 1328-29. As a result, "once the repeal of an ordinance has caused our jurisdiction to be questioned, [the plaintiff] bears the burden of presenting affirmative evidence that its challenge is no longer moot." Nat'l Advert. Co. v. City of Miami, 402 F.3d 1329, 1334 (11th Cir. 2005). This is because both this Court and the Supreme Court have repeatedly indicated that "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. The Fla. Bar, 608 F.3d 1241, 1265-66 (11th Cir. 2010) (alteration in original) (quoting Coral Springs, 371 F.3d at 1331 n.9); see also Coral Springs, 371 F.3d at 1329, 1330, 1331 n.9 (citing "numerous occasions" where the Supreme Court has held that the repeal of challenged legislation mooted a case and noting that our view, under which "the doctrine of voluntary cessation does not apply in cases where challenged laws have been repealed unless there is some reason to believe that the law may be reenacted after dismissal of the suit, " is "altogether consonant with that of every other Federal Circuit to address the issue"). Because of the deference with which we view voluntary changes in government action, a plaintiff disputing a finding of mootness must present more than "[m]ere speculation that the City may return to its previous ways." City of Miami, 402 F.3d at 1334 ("Mere speculation that the City may return to its previous ways is no substitute for concrete evidence of secret intentions.").

         Indeed, even where the intervening governmental action does not rise to the level of a full legislative repeal we have held that "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." Troiano v. Supervisor of Elections, 382 F.3d 1276, 1285 (11th Cir. 2004). In Troiano, a panel of this Court collected cases from both the Supreme Court and Eleventh Circuit and said:

When government laws or policies have been challenged, the Supreme Court has held almost uniformly that cessation of the challenged behavior moots the suit. The Court has rejected an assertion of mootness in this kind of challenge only when there is a substantial likelihood that the offending policy will be reinstated if the suit is terminated.

Id. at 1283-84 (emphasis in original) (citations to multiple Supreme Court cases omitted). The key inquiry in this mootness analysis therefore is whether the evidence leads us to a reasonable expectation that the City will reverse course and reenact the allegedly offensive portion of its Code should this Court grant its motion to dismiss. See Coral Springs, 371 F.3d at 1331 ("Whether the repeal of a law will lead to a finding that the challenge to the law is moot depends most significantly on whether the court is sufficiently convinced that the repealed law will not be brought back." (emphasis added)).

         From both the cases discussed above and those described in more detail below, we can discern the appropriate analysis, including three broad factors to which courts should look for guidance in conducting that inquiry. See Nat'l Ass'n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1310 (11th Cir. 2011) (Tjoflat, J., suggesting these three broad factors and citing cases from which they are derived). First, we ask whether the change in conduct resulted from substantial deliberation or is merely an attempt to manipulate our jurisdiction. Id. Thus we will examine the timing of the repeal, the procedures used in enacting it, and any explanations independent of this litigation which may have motivated it. Second, we ask whether the government's decision to terminate the challenged conduct was "unambiguous." Id. This requires us to consider whether the actions that have been taken to allegedly moot the case reflect a rejection of the challenged conduct that is both permanent and complete. Third, we ask whether the government has consistently maintained its commitment to the new policy or legislative scheme. Id. When considering a full legislative repeal of a challenged law-or an amendment to remove portions thereof-these factors should not be viewed as exclusive nor should any single factor be viewed as dispositive. Rather, the entirety of the relevant circumstances should be considered and a mootness finding should follow when the totality of those circumstances persuades the court that there is no reasonable expectation that the government entity will reenact the challenged legislation.

         Before applying this law to the instant facts, we find it instructive to discuss some additional precedent that informs our analysis, focusing particularly on our cases in which the timing of a legislative repeal was at issue. We begin with an opinion, National Advertising Co. v. City of Fort Lauderdale, 934 F.2d 283 (11th Cir. 1991), we think is in possible tension with the landscape we describe. In that case, an outdoor advertising company challenged the City of Fort Lauderdale's sign ordinance, alleging a series of constitutional deficiencies. Id. at 284. Six weeks after the company filed suit, the city amended the sign code and, the next day, moved to dismiss the case as moot. Id. at 284-85. The district court dismissed the claims as moot but a panel of this Court reversed, based primarily on the Supreme Court's decision in City of Mesquite v. Aladdin's Castle, Inc. Id. at 285- 86 (citing 455 U.S. 283, 102 S.Ct. 1070 (1982)). In so doing, the panel relied on the Supreme Court's observation that there "was no certainty that the City of Mesquite would not reenact the allegedly unconstitutional provision if it defeats federal jurisdiction." Id. at 286 (citing City of Mesquite, 455 U.S. at 289, 102 S.Ct. at 1075 ("There is no certainty that a similar course [of reenactment] would not be pursued if its most recent amendment were effective to defeat federal jurisdiction.")).

         Considered in isolation-particularly given its lack of any other apparent reason for harboring a reasonable expectation that the city would reenact its sign code-City of Fort Lauderdale could be construed to imply that the timing of a city's repeal is dispositive of whether we think it will reenact.[4] We reject that reading. Indeed, the panel did not even mention the timing of the amendment in its sparse rationale; the six-week gap between the filing of the suit and the amendatory legislation was mentioned solely in its recitation of the facts.

         Rather, the City of Fort Lauderdale rationale is based entirely on City of Mesquite. That reliance was misplaced. While it is true that the Supreme Court did say that "[t]here is no certainty" that the City of Mesquite would not reenact the challenged provision, City of Mesquite, 455 U.S. at 289, 102 S.Ct. at 1075, the Court's lack of certainty was expressly based upon two crucial facts that are not apparent in City of Fort Lauderdale, and are not present in the instant case. First- at oral argument before the Supreme Court-the City of Mesquite expressly conceded its intention to reenact precisely the same provision if the district court's judgment were vacated. Id. at 289 n.11, 102 S.Ct. at 1075 n.11. Second, the city had previously reinstated a related restriction in an "obvious" attempt to avoid the effects of an earlier state court ruling. Id. at 289, 102 S.Ct. at 1075. In other words, not only had the city revealed a propensity to repeal and then reenact allegedly offensive legislation when litigation interfered with its policy objectives, it had also expressly stated its intention of doing so in that case. Neither of these factors is apparent in City of Fort Lauderdale and, accordingly, that panel's reliance on the well-founded lack of certainty in City of Mesquite was misplaced. Nor, given its lack of analysis on the issue, can we conclude that City of Fort Lauderdale provides us with much precedent, if any, for the proposition that the timing of repealing legislation, by itself, is sufficient evidence to support a reasonable expectation that the governmental entity will reenact repealed legislation. Certainly, it should not be read to suggest that such timing should be deemed dispositive.

         In a case with a similar posture, National Advertising Co. v. City of Miami, 402 F.3d 1329 (11th Cir. 2005), the plaintiff-apparently the same National Advertising Company that was the plaintiff in City of Fort Lauderdale-brought a constitutional challenge to the sign provisions of the City of Miami's zoning ordinance. Id. at 1330-31. Sometime after plaintiff filed suit, the city began the process of amending its zoning regulations pertaining to signs and, ten months after litigation began, adopted amendments addressing "all the complaints" raised by plaintiff. Id. at 1331, 1335. Although it squarely confronted the question of timing, and any inference of motivation that could be drawn therefrom, the panel focused instead on the key inquiry guiding these determinations:

There is some dispute as to when the process of amending the City's zoning ordinance began. However, since we conclude that the City has no intention of re-enacting the allegedly unconstitutional segments of the zoning code, we need not decide what initially motivated the City's comprehensive overhaul of its entire zoning ordinance.

Id. at 1331 n.3. The Court went on to hold that the city's "purpose in amending the statute is not the central focus of our inquiry nor is it dispositive of our decision." Id. at 1334. Thus, City of Miami suggests-correctly in our view-that the timing of a legislative repeal will not, standing alone, create a reasonable expectation that the government entity will reenact challenged legislation. As that Court noted, "[r]ather, the most important inquiry is whether we believe the City would re-enact the prior ordinance." Id.

         Lastly, our en banc case in Tanner Advertising Group, L.L.C. v. Fayette County, Georgia, 451 F.3d 777 (11th Cir. 2006) (en banc), further persuades us that the timing of repealing legislation should not be dispositive of our inquiry into whether there is a reasonable expectation of reenactment. There the plaintiff, Tanner, challenged a county sign ordinance, alleging several constitutional infirmities. Id. at 781. After the district court denied relief and a panel of this Court reversed, we granted a petition for rehearing en banc. Id. at 783-84. The day after we agreed to take the case en banc-nearly three years into the litigation-the county repealed its sign ordinance and enacted a new plan substantially changing, with one exception, all of the provisions challenged in Tanner's original complaint. Id. at 784.

         Regarding those challenged provisions addressed by the new ordinance, our en banc Court unanimously held that "the repeal of the [previous] Sign Ordinance and the enactment of the [new] Sign Ordinance rendered moot the challenges brought by Tanner." Id. at 785. The Court reasoned:

"This Court and the Supreme Court have repeatedly held that the repeal or amendment of an allegedly unconstitutional statute moots legal challenges to the legitimacy of the repealed legislation." Nat'l Adver. Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005), cert. denied, 546 U.S. 1170, 126 S.Ct. 1318, 164 L.Ed.2d 48 (2006). A "superseding statute or regulation moots a case . . . to the extent that it removes challenged features of the prior law." Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000). If the repeal is such that "the allegedly unconstitutional portions of the [challenged] ordinance no longer exist, " the appeal is rendered moot because "any decision we would render would clearly constitute an impermissible advisory opinion." Nat'l Adver. Co., 402 F.3d at 1335.

Id. at 789-90 (alterations in original). The timing of the legislative repeal in Tanner-which is very similar to that of the instant case-not only did not drive the inquiry in that case, it did not even warrant mentioning in the rationale for the mootness holding. Moreover, Tanner's heavy reliance on City of Miami, and corresponding lack of reliance on City of Fort Lauderdale, bolsters our conclusion that the timing of repealing legislation should not control the mootness inquiry. Accordingly, in the context of a full repeal of allegedly unconstitutional legislation, we hold that the timing of the repealing legislation is not dispositive if the court concludes from other evidence that there is no reasonable expectation that the governmental actor will reenact the challenged provisions.[5] To the extent that City of Fort Lauderdale suggests otherwise, it is no longer precedential.

         We turn now to apply the foregoing principles of law to the instant facts, using the broad factors detailed above to inform our ultimate inquiry into whether the totality of the circumstances indicates that there is a reasonable expectation that the City here will reenact the repealed legislation. We conclude there is no substantial evidence indicating a reasonable likelihood that the City will reenact the challenged provision which it has now repealed. To the contrary, there is very substantial evidence leading us to believe that there is no reasonable expectation that the same or a similar provision will be reenacted.

         Considering the first broad factor, Appellants have argued that the timing of this repeal-years into the litigation and after we agreed to rehear the case en banc-is not the result of substantial deliberation but, rather, reflects a plain attempt to manipulate the Court's jurisdiction. We are not unsympathetic to this argument. However, under the full analysis required by this factor we find it instructive that the City has engaged in substantial deliberation-having twice voted on the relevant remedial measures-and has put forth persuasive explanations that are not dependent upon this litigation.

         As an initial matter, the facts here are far removed from those cases in which the procedures used to effect a change have given us pause about the level of deliberation attending a change in policy. Cf. Harrell, 608 F.3d at 1267 ("[T]he Board acted in secrecy [and] me[t] behind closed doors . . . ."); id. ("[I]n doing so, it may have departed from its own procedures."). On the contrary, here the City Council voted on both the Ordinance's repeal and the resolution regarding that repeal in open session during regularly scheduled meetings. Both measures were placed on the Council's published agenda and are reflected in their meeting minutes. The repeal itself was passed unanimously with all members present and, although a single member was missing for the second vote, the resolution regarding the repeal was likewise passed without objection. In short, the procedures used by the City to repeal the Ordinance reflect the same level of deliberation we would expect for any other change in policy.

         Additionally, the City has offered persuasive explanations, not dependent upon this litigation, to explain its course of conduct in repealing the Ordinance. Compare Troiano, 382 F.3d at 1285 ("[Defendant's] decision to implement the changes in the voting machines was well reasoned . . . ."), with Harrell, 608 F.3d at 1267 ("[T]he Board . . . fail[ed] to disclose any basis for its decision."). Here, the City has provided two compelling explanations. First, it has pointed out that the Ordinance's repeal had the effect of removing an inconsistency between the repealed provision and other applicable regulations. Indeed, while the Ordinance at issue here banned the sale of sexual devices throughout the City, entirely separate provisions of the Code contemplate such sales and regulate the same through license and zoning requirements for ...

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