United States District Court, E.D. Arkansas, Eastern Division
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
OPINION AND ORDER
LEON HOLMES, UNITED STATES DISTRICT JUDGE
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alleges that the city council unlawfully repealed an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.
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.
alleges that the defendants' actions have violated the
first, fourth, fifth, and fourteenth amendments of the United
States Constitution. 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.
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.
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.
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).
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.
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
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.
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.
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).
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
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 ...