Thursday, June 25, 2020

Federal Appeals Court Affirms Dismissal of Lakeland Confederate Monument Lawsuit, With Possibility to Refile

No model of legal draftsmanship, the federal court lawsuit against the City of St. Augustine on the 1879 Confederate monument was dismissed on June 23, based on a June 22, 2020 Eleventh Circuit Court of Appeals decision, which allowed the plaintiffs to amend their complaint. Here's the 11th Circuit decision:

[PUBLISH]IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT ________________________ No. 19-10461________________________ D.C. Docket No. 8:18-cv-02843-VMC-JSSWADE STEVEN GARDNER, MARY JOYCE STEVENS, RANDY WHITTAKER, In Official Capacity at Southern War Cry, VETERANS MONUMENTS OF AMERICA, INC., Andy Strickland, US Army Ret, President, PHIL WALTERS, In his Official Capacity as 1st Lt. Commander of the Judah P. Benjamin Camp # 2210 Sons of Confederate Veterans, KEN DANIEL, In his Official Capacity as Director of Save Southern Heritage, Inc. Florida, RANDY WHITTAKER, Individually, Plaintiffs - Appellants, versusWILLIAM MUTZ, In his Official Capacity as Mayor of the City of Lakeland, Florida, TONY DELGADO, In his Official Capacity as Administrator of the City of Lakeland, Florida, DON SELVEGE, In his Official Capacity as City of Lakeland, Florida Commissioner, JUSTIN TROLLER, In his Official Capacity as City of Lakeland, Florida Commissioner, Case: 19-10461 Date Filed: 06/22/2020 Page: 1 of 26
2 PHILLIP WALKER, In his Official Capacity as City of Lakeland, Florida Commissioner, FLORIDA SECRETARY OF STATE, et al., Defendants - Appellees.________________________ Appeal from the United States District Courtfor the Middle District of Florida________________________ (June 22, 2020)Before MARTIN, NEWSOM, and O’SCANNLAIN,* Circuit Judges.NEWSOM, Circuit Judge: This appeal arises from a lawsuit filed by a group of individuals and organizations who object to the City of Lakeland’s decision to relocate a Confederate monument from one city park to another. As relevant here, the plaintiffs contend that the relocation violates their rights under the First Amendment’s Free Speech Clause and the Fourteenth Amendment’s Due Process Clause. The district court rejected the plaintiffs’ First Amendment claim on the merits and dismissed it with prejudice; the court dismissed the plaintiffs’ due process claim without prejudice on the ground that they lacked the requisite standing to pursue it. * Honorable Diarmuid F. O’Scannlain, United States Circuit Judge for the Ninth Circuit, sitting by designation.Case: 19-10461 Date Filed: 06/22/2020 Page: 2 of 26
3 Following the district court’s decision, the plaintiffs failed to obtain (or even seek) a stay, and, by the time the case reached us the City had proceeded to relocate the monument. On appeal, the plaintiffs challenge the dismissal of their complaint, and the defendants respond by contesting the plaintiffs’ standing to sue, defending the district court’s decision on the merits, and contending that the monument’s relocation has rendered the case moot. We hold that the plaintiffs lack standing to pursue either their First Amendment claim or their due process claim. Accordingly, we will vacate and remand the with-prejudice dismissal of the plaintiffs’ First Amendment claim, with instructions that the district court should dismiss without prejudice for lack of jurisdiction, and we will affirm the district court’s without-prejudice dismissal of the plaintiffs’ due process claim. I A The plaintiffs in this case are Wade Steven Gardner, a citizen-taxpayer of Lakeland; Randy Whittaker, a citizen-taxpayer of Polk County who has, he says, “Confederate Dead in his family lineage”; Southern War Cry, an organization that Whittaker administers; the Judah P. Benjamin Camp #2210 Sons of Confederate Veterans, a subdivision of the nonprofit Florida Division Sons of Confederate Veterans, Inc., whose self-described purpose is to “‘vindicate the cause’ for which the Confederate Veteran fought”; Veterans Monuments of America, Inc., a nonprofit entity dedicated to protecting and preserving war memorials; Mary Joyce Case: 19-10461 Date Filed: 06/22/2020 Page: 3 of 26
4 Stevens, a Georgia resident and a current member and past president of a chapter of the United Daughters of the Confederacy; and Save Southern Heritage, Inc., a South Carolina nonprofit formed to “preserve the history of the south for future generations.” Most of the defendants in this case are affiliated either with the City of Lakeland or the State of Florida. The City-related defendants are William Mutz, Lakeland’s Mayor; Don Selvage, Justin Troller, and Phillip Walker, Lakeland City Commissioners; and Tony Delgado, the City Manager. The plaintiffs also sued Michael Ertel, the Florida Secretary of State,1 and Antonio Padilla, the President of Energy Services & Products Corporation, which had submitted a proposal for relocating the monument. This case centers on a memorial “cenotaph”2 that is dedicated to Confederate soldiers who died during the Civil War and is—or more accurately, was—located in Lakeland’s Munn Park, which is a part of a nationally registered historic district. In 1908, the City granted the United Daughters of the Confederacy’s petition to erect the monument in Munn Park. The cenotaph is 26 feet tall, weighs about 14 tons, and is engraved with the words “Confederate Dead,” a poem, and images of Confederate flags. More recently, the City began to 1 Ertel replaced his predecessor in office, Kenneth Detzner. 2 A cenotaph is “[a]n empty tomb or a monument erected in honor of a person who is buried elsewhere.” Webster’s Second New International Dictionary 433 (1934).Case: 19-10461 Date Filed: 06/22/2020 Page: 4 of 26
5 receive complaints about the monument, and in December 2017 the City Commission agreed to start the process of removing it. In May 2018, the Commission voted to relocate the cenotaph from Munn Park to Veterans Park, which is located outside Lakeland’s historic district. The Commission initially directed that all relocation costs be paid by private donations, but it later agreed to permit the use of funds from Lakeland’s red-light-camera program to complete the project. B In November 2018, the plaintiffs sued to prevent the cenotaph’s relocation. Of their complaint’s seven counts, only two are at issue here: Count 1 alleged a violation of the plaintiffs’ First Amendment rights—in particular, the plaintiffs complained, the City “ha[d] abridged [their] right to free speech . . . by deciding to remove the [c]enotaph which communicated minority political speech in a public forum.” Count 4 alleged a violation of the Due Process Clause—specifically, the plaintiffs asserted that the City failed “to provide [them] and other like-minded Florida and American citizens due process, including reasonable notice, an opportunity to be heard and a hearing before a neutral arbiter, before removing the Historic Munn Park Cenotaph.”3 The plaintiffs requested both a declaration that 3 The counts not relevant to this appeal are as follows: Count 2 alleged a breach of a bailment agreement between the city and the United Daughters of the Confederacy; Count 3 alleged various “[v]iolation[s] of public trust”; Count 5 alleged a violation of Lakeland’s Historic Case: 19-10461 Date Filed: 06/22/2020 Page: 5 of 26
6 the City’s actions violated the Constitution and an injunction to prevent the monument’s relocation. The defendants moved to dismiss the plaintiffs’ suit. In their motion, Mutz, Delgado, Selvage, Troller, and Walker argued that the plaintiffs lacked standing, that they had failed to state a claim for which relief could be granted, and that, in any event, their claims were barred by legislative and/or qualified immunity. In particular, the defendants contended that the plaintiffs hadn’t suffered an “injury in fact” because they didn’t have a “cognizable claim arising out of the City’s relocation or removal of a monument on City property.” More particularly still, they argued that the cenotaph was a form of government speech and that, accordingly, the plaintiffs didn’t have a “Free Speech claim with respect to [it ] or any due process rights premised on [its] removal.” Ertel and Padilla moved to dismiss on similar grounds.The district court granted the defendants’ motions. With respect to the plaintiffs’ First Amendment claim, the court opted to treat the City officials’ motion to dismiss for lack of subject-matter jurisdiction as a motion to dismiss for failure to state a claim; for support, the court invoked the proposition that when a defendant’s jurisdictional challenge “implicates an element of the cause of action, Preservation Ordinance; and Counts 6 and 7 alleged intent and collusion to violate two Florida statutes. Case: 19-10461 Date Filed: 06/22/2020 Page: 6 of 26
7 courts are to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff’s case.” Dist. Ct. Order at 9 (internal quotation marks omitted) (quoting Scarfo v. Ginsberg, 175 F.3d 957, 965 (11th Cir. 1999)(Barkett, J., dissenting)). Having refocused the inquiry from the plaintiffs’ standing to the merits of their claim, the district court held that the cenotaph is not private expression but rather a form of government speech and, accordingly, that the “[p]laintiffs d[id] not have a legally protected interest in that speech” and that “their First Amendment claim fail[ed] as a matter of law.” Id. at 9–11.The court rejected the plaintiffs’ due process claim on standing grounds, holding that “[e]ven if [p]laintiffs had a protected liberty or property interest in the [c]enotaph’s placement in Munn Park,” their alleged injuries were “not sufficiently particularized” for Article III purposes. Id. at 12–13 (internal quotation marks and citation omitted).4 The district court alternatively held that the plaintiffs had failed to state a cognizable due process claim because they “lack[ed] a liberty interest in the [c]enotaph and thus [could not] state a procedural due process claim based on the memorial’s relocation.”Id. at 15.54 The court separately rejected the plaintiffs’ contention that Gardner had standing as a municipal taxpayer on the ground that no tax dollars had been spent on the relocation. 5 Because it dismissed all of the plaintiffs’ federal claims, the district court declined to exercise supplemental jurisdiction over the remaining state-law claims. Although they referenced their state-law claim against the Secretary of State in their notice of appeal, the plaintiffs have offered no challenge to the district court’s decision to decline supplemental jurisdiction. Because the Case: 19-10461 Date Filed: 06/22/2020 Page: 7 of 26
8 The plaintiffs promptly appealed the district court’s dismissal order to this Court. For whatever reason, though, they failed to seek a stay pending appeal to prevent the relocation of the cenotaph while the case wound its way to us, and, in the meantime, the City of Lakeland proceeded to move the monument from Munn Park to Veterans Park. In light of the cenotaph’s relocation, the defendants argue that because “the action [the plaintiffs] sought to prevent has come to pass, the case is now moot.” Br. of Appellees at 12.II “Federal courts are courts of limited jurisdiction.”Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, we have “a special obligation to satisfy [ourselves] . . . of [our] own jurisdiction” before proceeding to the merits of an appeal. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998) (internal quotation marks and citation omitted).The most notable—and most fundamental—limits on the federal “judicial Power” are specified in Article III of the Constitution, which grants federal courts jurisdiction only over enumerated categories of “Cases” and “Controversies.” U.S. Const. art. III, § 2. This case-or-controversy requirement comprises three familiar “strands”: plaintiffs haven’t contested the issue in their briefs, it is abandoned. See United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001). Case: 19-10461 Date Filed: 06/22/2020 Page: 8 of 26
9 (1) standing, (2) ripeness, and (3) mootness. Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1189 (11th Cir. 2011).6Two case-or-controversy requirements—standing and mootness—are at issue in this case: The district court held that the plaintiffs lacked standing to pursue their due process claims, and the same basic considerations that animated its decision call into question the plaintiffs’ standing to litigate their First Amendment claims. And separately, in light of the cenotaph’s removal from Munn Park during the pendency of the appeal, the defendants contend that the case is now moot.So, a threshold question about threshold questions: Which to assess first? The Supreme Court has clarified that a reviewing court can “choose among threshold grounds for denying audience to a case on the merits,” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999), and we have routinely availed ourselves of that flexibility,see, e.g., Cook v. Bennett, 792 F.3d 1294, 1298–99 (11th Cir. 2015) (addressing standing, then mootness);KH Outdoor, L.L.C. v. Clay County, 482 F.3d 1299, 1302 (11th Cir. 2007) (addressing mootness, then standing); Tanner Advert. Grp., L.L.C. v. Fayette County, 451 F.3d 777, 785 (11th Cir. 2006) (same); Fla. Pub. Interest Research Grp. Citizen Lobby, Inc. v. EPA, 6 Or perhaps four. Cf. Made in the USA Found. v. United States, 242 F.3d 1300, 1312 (11th Cir. 2001) (“The political question doctrine emerges out of Article III’s case or controversy requirement and has its roots in separation of powers concerns.”).Case: 19-10461 Date Filed: 06/22/2020 Page: 9 of 26
10 386 F.3d 1070, 1082–88 (11th Cir. 2004) (addressing standing, then mootness). Here, for several reasons, we think it best to start with standing.First, and perhaps most obviously, standing was—at least in part, anyway—the basis of the district court’s decision below.As we’ll explain shortly, in addressing the plaintiffs’ First Amendment claim, the district court improperly conflated the standing and merits inquiries. But even so, that court perceived and addressed potential problems with the plaintiffs’ standing to sue, and it makes sense for us to pick up that thread. Mootness issues, by contrast, arose only during the pendency of this appeal, when the plaintiffs failed to seek a stay and the defendants proceeded to relocate the cenotaph. Cf. KH Outdoor, L.L.C., 482 F.3d at 1301–02 (exercising discretion to address mootness before standing where mootness had been at issue below). Second, as we have observed before, standing is “perhaps the most important,” Fla. Pub. Interest, 386 F.3d at 1083 (internal quotation marks and citation omitted)—or, alternatively, the “most central,” Kelly v. Harris, 331 F.3d 817, 819 (11th Cir. 2003)—of Article III’s jurisdictional prerequisites. Why so? One reason, which distinguishes standing from its Article III running buddies, is that whereas ripeness and mootness are fundamentally temporal—ripeness asks whether it’s too soon, mootness whether it’s too late—standing doesn’t arise and evanesce; rather, it “limits the category of litigants empowered to maintain a Case: 19-10461 Date Filed: 06/22/2020 Page: 10 of 26

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