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Mondy v. Messina

United States District Court, E.D. Arkansas, Eastern Division

August 25, 2017

ELIJAH MONDY, JR., individually and on behalf of all similarly situated citizens of the City of Helena-West Helena, Arkansas PLAINTIFF
ADRIAN MESSINA, individually and in his official capacity as Alderman for the City of Helena-West Helena, Arkansas, DEFENDANTS



         This is a putative class action against the City of Helena-West Helena, its mayor, and its aldermen. Elijah Mondy, Jr., alleges that the city council unlawfully repealed an ordinance passed by a majority of the city's residents during a valid initiative election. The defendants have filed motions to dismiss the action and to disqualify Mondy's attorney, James F. Valley. Because Mondy fails to state a claim that arises under federal law, the case is dismissed without prejudice and the motion to disqualify counsel is denied as moot.

         On or about September 9, 2016, Mondy submitted a petition for an initiated ordinance with the requisite number of signatures to the city clerk. Document #1 at ¶29. The proposed ordinance would reduce the number of wards in the city and consequently the number of city council members. Id. The clerk verified the signatures, and the county election commission approved the ordinance to appear on the ballot for the November 2016 election. Id. ¶32. By majority vote, the initiated ordinance passed at the election. Id. ¶33. In early December of 2016, the city council voted 10-0 on a “motion to repeal the vote” on the initiated ordinance. Id. ¶34. The city council subsequently realized that a new ordinance was needed to repeal the initiated ordinance. Id. Later that month the city council met again, this time with a repeal ordinance on the agenda. Id. ¶35. The city council ultimately adopted the repeal ordinance by an 8-1 vote. Id. ¶36. The city council also voted by the same margin on an emergency clause so that the repeal ordinance would be effective immediately. Id.

         Mondy alleges that the defendants' actions have violated the first, fourth, fifth, and fourteenth amendments of the United States Constitution.[1] He further alleges violations of 42 U.S.C. § 1983, the Civil Rights Act of 1964, and the Voting Rights Act of 1965. After invoking these provisions in the jurisdictional allegation of his complaint, Mondy barely mentions them again. Instead, the complaint alleges numerous violations of Arkansas law and seeks a declaration that the repeal ordinance is invalid under state law.

         The defendants have moved to dismiss the complaint because it fails to state a claim upon which relief may be granted and because the Court lacks subject matter jurisdiction. Document #19 at 1, ¶1 and 2, ¶4. The defendants' motion to dismiss for lack of subject matter jurisdiction is governed by Federal Rule of Civil Procedure 12(b)(1), while their motion to dismiss for failure to state a claim is governed by Rule 12(b)(6). Mondy responded but did not address the issue of subject matter jurisdiction, except in a conclusory fashion. Document #20 at 6, ¶23.

         The United States constitution extends the federal judicial power to cases and controversies that arise under the constitution, laws, or treaties of the United States and to disputes between parties of different states. U.S. Const. art. III, § 2, cl. 1. By statute, the United States District Courts “shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Whether a district court has federal question jurisdiction is determined by the “well-pleaded complaint rule, ” which provides that a district court has jurisdiction “when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987) (citation omitted). A district court also may have jurisdiction in a civil action in which the amount in controversy exceeds $75, 000 and the dispute is between citizens of different states. 28 U.S.C. § 1332(a).

         The defendants' motion amounts to a facial attack on jurisdiction, which affords Mondy's complaint Rule 12(b)(6) protection. Carlson v. Game Stop, Inc., 833 F.3d 903, 908 (8th Cir. 2016). Under Rule 12(b)(6), the Court accepts as true all of the factual allegations contained in the complaint and draws all reasonable inferences in favor of the nonmoving party. Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th Cir. 2014). The complaint must, however, contain more than labels, conclusions, or a formulaic recitation of the elements of a cause of action, which means that the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Bell Alt. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).

         Even if a claim arises under federal law, a United States District Court lacks jurisdiction when the plaintiff lacks standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). The “irreducible constitutional minimum of standing” requires a plaintiff to have (1) suffered an injury in fact that is (2) fairly traceable to the conduct of the defendant and is (3) likely to be redressed by a favorable judgment. Id. at 561, 112 S.Ct. at 2136.

         This Court lacks jurisdiction for at least two reasons. First, the complaint fails to allege a claim that arises under federal law and diversity jurisdiction is lacking, so this Court does not have subject matter jurisdiction. Secondly, Mondy lacks standing.[2]

         Mondy does not allege diversity jurisdiction under 28 U.S.C. § 1332. Jurisdiction, then, must be premised on a claim “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Although the complaint refers to the United States constitution and federal statutes, the alleged misconduct does not state a claim that arises under federal law. The heart of Mondy's complaint is that, in violation of Arkansas law, the city council repealed and replaced the initiated ordinance. Mondy alleges in conclusory fashion that the defendants violated his federal voting rights and first amendment rights and denied them substantive and procedural due process. Id. ¶¶58, 76.

         Mondy collected an adequate number of valid signatures and successfully petitioned to have the proposed ordinance placed on the ballot to be adopted by initiative of the voters of the City of Helena-West Helena. The city clerk approved the petition and the county election commission placed the proposed ordinance on the ballot. Votes were cast, so far as the complaint alleges, without any hindrance or attempt to interfere. A majority voted to adopt the proposed ordinance. The city then recognized the ordinance as having been validly adopted (else the repeal ordinance would have been unnecessary). Mondy's complaint is that the defendants, allegedly in violation of Arkansas law, repealed the ordinance. He does not explain, however, how the defendants violated federal law.

         Mondy mentions the first amendment in his complaint but alleges no facts to show that his first amendment rights were violated. “[T]he right to a state initiative process is not a right guaranteed by the United States constitution, but is a right created by state law.” Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997). The first amendment's speech clause “assure[s] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957).

         It does not guarantee that the government will listen. Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283, 104 S.Ct. 1058, 1065, 79 L.Ed.2d 299 (1984); see also Smith v. Arkansas State Highway Emp., Local 1315, 441 U.S. 463, 465, 99 S.Ct. 1826, 1828, 60 L.Ed.2d 360 (1979) (remarking that the first amendment “provides no guarantee that a speech will persuade or that advocacy will be effective” (citation omitted)); Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099 (10th Cir. 2006) (“Although the First Amendment protects political speech incident to an initiative campaign, it does not protect the right to make law, by initiative or otherwise.”). In a similar case, the Eighth Circuit explained:

The residents have not shown any restriction on their ability to participate in the referendum process or otherwise engage in political speech, nor have they shown any burden on their ability to publicize their views. Neither the referendum process itself nor the City's conduct in responding to the referendum process interfered in any way with the message the residents sought to communicate, restricted their ability to circulate either referendum petition, regulated the content of their ...

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