United States District Court, E.D. Arkansas, Jonesboro Division
TURNING POINT USA AT ARKANSAS STATE UNIVERSITY; and ASHLYN HOGGARD PLAINTIFFS
v.
RON RHODES, individually, et al. DEFENDANTS
OPINION AND ORDER
J.
LEON HOLMES UNITED STATES DISTRICT JUDGE.
This
case presents a constitutional challenge to the
“Freedom of Expression” policy previously in
force at Arkansas State University campus in Jonesboro and
the concomitant system-wide policy, which were repealed this
spring.[1] The Policy applied to faculty, staff,
students, student organizations, and visitors. Document
#40-10 at 3. It designated seven specific areas of the ASU
campus as “Free Expression Areas” where
individuals could schedule “speaking, demonstrating,
and other forms of expression” during certain hours on
Monday through Friday. A person who wished to use other areas
or other times for “speeches and demonstrations”
could request to do so seventy-two hours or more in advance
of the event. The Policy also provided that written materials
could be distributed in specifically designated
“distribution areas, ” including any of the Free
Expression Areas. No. stands, tables, or booths were allowed
in distribution areas, except in the Free Expression Areas,
and only with permission from a specified university
official. Id. at 3-4.
In the
fall of 2017 ASU student Ashlyn Hoggard wanted to start a
local chapter of Turning Point USA on the ASU
campus.[2] Hoggard, along with Emily Parry, a
non-student representative of Turning Point USA, set up a
table on the edge of a large, open patio area outside the
Reng Student Union in Heritage Plaza on ASU's campus.
They began speaking with passing students in an attempt to
recruit individuals and start a local Turning Point USA
chapter. Hoggard and Parry had not requested permission from
any ASU official to set up the table or promote Turning Point
USA on the Heritage Plaza patio.
ASU
student union administrators Sarah Ponder and Elizabeth Rouse
soon approached them, told them that they were not allowed to
set up a table where they were, and instructed them to stop
their activities. Two ASU police officers, Terry Phipps and
Andrew Thrasher, arrived. After Parry engaged the ASU
employees verbally, Phipps issued Parry a citation for
violating the Policy and directed her to leave campus.
Hoggard and Parry took down their table and stopped their
promotion activities that day. Hoggard later succeeded in
starting a chapter of the organization at ASU.
This
lawsuit commenced. Hoggard and Turning Point USA at ASU sued
several ASU officials in their official capacities for
injunctive and declaratory relief and in their individual
capacities for damages. The plaintiffs claim under 42 U.S.C.
§ 1983 that the Policy violates the first and fourteenth
amendments to the United States Constitution. They challenge
the Policy on its face and as it was applied to them. The
complaint named as defendants, in their official and
individual capacities, the following: Ron Rhodes, Tim
Langford, Niel Crowson, Stacy Crawford, and Price Gardner,
all members of the Board of Trustees of the Arkansas State
University System as of October 2017; Charles Welch,
President of the ASU System; Kelly Damphousse, Chancellor of
ASU; William Stripling, Vice Chancellor for Student Affairs
of ASU; and Martha Spack, Director of Student Development and
Leadership of ASU. In February, the Court granted a motion to
substitute a new member of the Board, Christy Clark, in her
official capacity for former Board member Ron Rhodes in his
official capacity. Rhodes remains as a defendant in his
individual capacity only. Notably, the plaintiffs have not
named Ponder, Rouse, Phipps, or Thrasher as defendants; nor
is Parry a plaintiff.
As
relief, the complaint requests a declaratory judgment that
the Policy and associated practices, facially and as applied,
violate the plaintiffs' rights under the first and
fourteenth amendments; an injunction prohibiting the
defendants from enforcing the Policy and associated
practices; compensatory and nominal damages; and
attorneys' fees.
The
defendants have moved to dismiss the case as moot. The
plaintiffs and the defendants have filed cross motions for
summary judgment. The Court held oral argument on these
motions. The defendants also have filed a supplemental motion
for summary judgment addressing an issue that came up at the
oral argument-whether the trustees can be individually liable
for failing to repeal the Policy. For the reasons that will
be explained, the motion to dismiss as moot is granted on all
claims except the claim against the defendants in their
individual capacities for nominal damages. Based on the
doctrine of qualified immunity, summary judgment is granted
in favor of the defendants on that claim.
Motion
to Dismiss
Article
III of the United States Constitution authorizes federal
courts to hear cases and controversies. A case is moot, and
no longer a case or controversy, when the issues presented
are no longer live or the parties no longer have a legally
cognizable interest in the outcome. Teague v.
Cooper, 720 F.3d 973, 976 (8th Cir. 2013) (quoting
Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133
S.Ct. 721, 726, 184 L.Ed.2d 553 (2013)). “Through the
passage of time and the occurrence of irrevocable events,
disputes may disappear so that federal courts no longer can
grant effective relief.” McFarlin v. Newport
Special Sch. Dist., 980 F.2d 1208, 1210 (8th Cir.
1992).
A
request for injunctive relief is moot if the injunctive
relief sought would no longer have any meaning for the party
seeking it. See Forbes v. Ark. Educ. Television Comm.
Network Found., 982 F.2d 289, 289 (8th Cir. 1992) (per
curiam); McFarlin, 980 F.2d at 1210. Likewise, for a
federal court to issue a declaratory judgment, the dispute
must call not for an advisory opinion upon a hypothetical
basis, but for an adjudication of present right upon
established facts. Webb v. Smith, 2018 WL 1401315,
at *3, 4:17CV00660-JLH (E.D. Ark. Mar. 20, 2018) (quoting
Ashcroft v. Mattis, 431 U.S. 171, 172, 97 S.Ct.
1739, 1740, 52 L.Ed.2d 219 (1977)). If, therefore, a law has
been amended or repealed, claims for injunctive or
declaratory relief based on the previous version of the law
are generally moot because there is no longer a need for
court action. Phelps-Roper v. City of Manchester,
697 F.3d 678, 687 (8th Cir. 2012) (en banc). The exceptions
to this rule are “rare and typically involve situations
where it is virtually certain that the repealed law will be
reenacted.” Teague, 720 F.3d at 977.
Here,
the plaintiffs ask the Court to enjoin the defendants from
enforcing the Policy. Document #1 at 20. They also seek a
declaratory judgment that the Policy and associated practices
violate their constitutional rights. Id. Their
requests for injunctive and declaratory relief revolve
entirely around the Policy and ASU's enforcement of the
Policy.
As the
Court previously mentioned, however, the Policy has been
repealed. In March the Arkansas General Assembly passed the
FORUM Act, [3] which prohibits state-supported
universities from limiting expressive activities to only
designated areas. Soon afterwards, the ASU Board of Trustees
repealed the Policy. Document #57-2. The defendants contend
that the case is therefore moot.
There
is no reasonable expectation that the Board will reenact the
earlier version-doing so would violate the FORUM Act. See
Phelps Roper, 697 F.3d at 687. Nor is there any evidence
that the state will repeal the FORUM Act. See
Teague, 720 F.3d at 977-78. An injunction prohibiting
the defendants from enforcing the Policy thus would have no
meaning because the Policy is no longer in effect and cannot
be enforced against the plaintiffs or anyone else. A
declaratory judgment would not adjudicate the parties'
present rights pertaining to the Policy because it no longer
exists and no one has any rights under it. The
plaintiffs' claims for declaratory and injunctive relief
are moot. As the claims against the defendants in their
official capacities sought only declaratory and injunctive
relief, all official-capacity claims are dismissed.
All the
plaintiffs' facial challenges to the former Policy are
also moot. See Phelps-Roper, 697 F.3d at 687. When a
statute, ordinance or policy has been repealed, a
plaintiff's facial challenge to it could remedy nothing -
she is in no jeopardy that it will be enforced against her,
and she has no legally cognizable interest in its
constitutionality. In Phelps-Roper, the
plaintiff's facial challenge to previous versions of a
city ordinance became moot after the city amended it.
Id. at 687. The court held that even the
plaintiffs' “request for nominal damages does not
give them standing to challenge the first two versions of the
ordinance because they cannot revive an otherwise moot claim
against ‘a regime no longer in existence.'”
Id. (quoting Morrison v. Bd. of Educ., 521
F.3d 602, 611 (6th Cir. 2008)). Many other courts have
dismissed facial challenges as moot based on changed
circumstances. Reyes v. City of Lynchburg, 300 F.3d
449, 453 (4th Cir. 2002) (holding that after ordinance was
repealed “[t]he question of overbreadth [did] not
present a live case or controversy” and the facial
overbreadth challenge was moot); Advantage Media, LLC v.
City of Eden Prairie, 405 F.Supp.2d 1037, 1046 n.5 (D.
Minn. 2005) (“Further, the [challenged] provisions were
removed from the code . . . which renders plaintiff's
facial challenge and corresponding request for injunctive
relief moot.” (citing Coral Springs St. Sys., Inc.
v. Sunrise, 371F.3d 1320, 1346 (11th Cir. 2004);
Utah Animal Rights Coal. v. Salt Lake City Corp.,
371 F.3d 1248, 1256-57 (10th Cir. 2004))); Phelps-Roper
v. Heineman, 710 F.Supp.2d 890, 908-09 (D. Neb. 2010)
(dismissing as moot facial challenge to statute because there
was no risk it could be applied to the plaintiff); Rock
for Life-UMBC v. Hrabowski, 643 F.Supp.2d 729, 741 (D.
Md. 2009) (dismissing as moot a facial challenge to the
constitutionality of a university policy amended after
litigation commenced); Roberts v. Haragan, 346
F.Supp.2d 853, 867 n.5 (N.D. Tex. 2004) (same). The facial
challenges to the former Policy are moot and therefore
dismissed.
The
defendants argue that the plaintiffs' claims for damages
also are moot. It is well established that changed
circumstances do not render moot claims for damages that
arise from violations of the plaintiff's own
constitutional rights. See Advantage Media, LLC v. City
of Eden Prairie, 456 F.3d 793, 803 (8th Cir. 2006);
see also Watlington v. City of McCrory, Ark.,
2:17CV00002-DPM, Document #31, (E.D. Ark. Aug. 3, 2017). In
Advantage Media, the city amended its municipal sign
code after Advantage sued the city for denying its sign
permit application. Because the alleged deficiencies in the
code were remedied after the action commenced, the request
for injunctive relief was moot. Id. at 803.
Advantage had standing however because, as the Eighth Circuit
explained, “Advantage might be entitled to nominal
damages if it could show that it was subjected to
unconstitutional procedures.” Id. Similarly,
in Watlington, the city repealed the challenged
ordinance soon after the plaintiffs filed their complaint,
making the plaintiffs' request for injunctive relief
moot, but Judge Marshall explained that the entire case was
not moot inasmuch as the plaintiffs sought damages for the
police chief's enforcement of the allegedly
unconstitutional ordinance against them. Watlington,
2:17CV00002, Document #31 at 2.
These
cases and others stand for the proposition that even if
changed circumstances render a request for injunctive relief
moot, the case itself is not moot if the plaintiff could
recover damages-even nominal damages-for a constitutional
violation. See also Stevenson v. Blytheville Sch. Dist.
No. 5, 800 F.3d 955, 964-65 (8th Cir. 2015) (although
the Arkansas General Assembly amended the statute at issue,
mooting the claim for injunctive relief, “the
appellants could potentially recover money damages for any
constitutional violation arising from” a violation of
the former statute) (citing Brandywine, Inc. v. City of
Richmond, 359 F.3d 830, 836 (6th Cir. 2004));
McFarlin, 980 F.2d at 1211 (although student's
graduation rendered her claim for preliminary injunctive
relief moot, the entire case was not moot because plaintiffs
could “advance the damages claim on behalf of their
daughter against the defendants for allegedly depriving
[their daughter] of civil rights”); Forbes,
982 F.2d at 289 (“The underlying case is not moot. The
complaint contains a prayer for money damages.”).
In this
case, the complaint seeks damages from all remaining
defendants in their individual capacities. Document #1 at 21.
Accordingly, the passage of the FORUM Act and the Board's
subsequent repeal of the Policy does not moot the claim for
damages caused by its enforcement.[4]
The
defendants next argue that Hoggard's claim for
compensatory damages is foreclosed because she disclaimed any
interest in compensatory damages in her deposition. Document
#58 at 6. If a party abandons a claim for compensatory
damages, the former claim cannot rescue an otherwise moot
case. See 13C Charles Alan Wright, Arthur R. Miller,
& Edward Cooper, Federal Practice & Procedure §
3533.3 (3d ed.). At her deposition Hoggard was repeatedly
asked whether she wanted monetary damages from this lawsuit.
She ultimately answered “no, I just want the policy
changed.” Document #35-1 at 41.
Assuming,
without deciding, that Hoggard's deposition testimony
amounts to abandonment of compensatory damages,
[5] her
claim is not moot because the complaint also seeks nominal
damages. Even a claim for nominal damages for constitutional
violations suffices to avoid mootness. See Advantage
Media, LLC, 456 F.3d at 803 (challenges were not moot
because plaintiff “might be entitled to nominal damages
if it could show that it was subjected to unconstitutional
procedures”); see also 13A Federal Practice
& Procedure § 3533.3 (“The very determination
that nominal damages are an appropriate remedy for a
particular wrong implies a ruling that the wrong is worthy of
vindication by an essentially declaratory judgment. A valid
claim for nominal damages should avoid mootness.”)
(footnotes omitted).
The
defendants argue that Advantage Media was implicitly
overruled by Phelps-Roper, where the Eighth Circuit
said that a claim for nominal damages did not give the
plaintiffs standing to challenge on free-speech grounds
repealed versions of an ordinance, stating that a request for
nominal damages does not “revive an otherwise moot
claim against ‘a regime no longer in
existence.'” Phelps-Roper, 697 F.3d at 687
(quoting Morrison, 521 F.3d at 611). Although the
Phelps-Roper opinion can be read to say that a
request for nominal damages never preserves a challenge to a
repealed law from mootness, the facts in
Phelps-Roper, and in Morrison, are
distinguishable from the facts here. In
Phelps-Roper, the plaintiffs never engaged in any
picketing that would have been prohibited. See
Phelps-Roper, 697 F.3d at 685. Likewise, in
Morrison, the plaintiff never engaged in speech
prohibited by the school policy at issue. Morrison,
521 F.3d at 605. In both cases, the as-applied claim was
based only on the allegation that the plaintiffs' free
speech rights had been chilled, not that the allegedly
unconstitutional ordinance or policy had been enforced
against the plaintiffs. In Advantage Media, the
ordinance was enforced against the plaintiff.
Thus,
Advantage Media and Phelps-Roper can be
reconciled as follows: Advantage Media stands for
the proposition that when a statute, ordinance or policy has
been enforced against a plaintiff, repeal of the policy does
not moot the plaintiffs' as-applied claim for nominal
damages; whereas Phelps-Roper stands for the
proposition that when a statute, ordinance or policy has not
been enforced against a plaintiff, repeal of the policy moots
the plaintiffs' as-applied claim for nominal damages. As
the Sixth Circuit said in Morrison, “No
readily apparent theory emerges as to how nominal damages
might redress past chill.” Morrison, 521 F.3d
at 610. Here, as in Advantage Media, the
now-repealed ASU Policy was enforced against Hoggard. If the
Policy was unconstitutional, her constitutional rights were
violated. Because the facts of Phelps-Roper and the
facts of Advantage Media are distinguishable, and
because the Eighth Circuit did not explicitly overrule
Advantage Media, Advantage Media remains
binding precedent; and it is directly on point, whereas
Phelps-Roper is not.
The
defendants' motion to dismiss on mootness grounds is
granted in part and denied in part. The plaintiffs'
claims for injunctive and declaratory relief are moot and
therefore dismissed. All claims against the defendants in
their official capacities are correspondingly dismissed. The
plaintiffs' claims challenging the Policy on its face are
dismissed. The plaintiffs' claim for nominal damages for
the enforcement of the Policy against them is not moot.
Defendants'
Motion For Summary Judgment
Remaining
are challenges to the former Policy as it was applied to the
plaintiffs. The remaining defendants are the individual
members of the ASU Board of Trustees as of October 11, 2017,
in their individual capacities: Ron Rhodes, Tim Langford,
Niel Crowson, Stacy Crawford, and Price Gardner; Charles
Welch, the President of the ASU system; Kelly Damphousse,
Chancellor of ASU; William Stripling, Vice Chancellor for
Student Affairs of ASU; and Martha Spack, Director of Student
Development and Leadership at ASU.
A court
should enter summary judgment if the evidence, viewed in the
light most favorable to the nonmoving party, demonstrates
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511,
91 L.Ed.2d 202 (1986); Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en
banc). A genuine dispute of material fact exists only if the
evidence is sufficient to allow a jury to return a verdict
for the nonmoving party. Anderson, 477 U.S. at 249,
106 S.Ct. at 2511. A movant is entitled to summary judgment
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91
L.Ed.2d 265 (1986). A moving party may satisfy its initial
burden by pointing out to the district court that the
nonmoving party lacks the evidence to prove an essential
element of ...