Turning Point USA at Arkansas State University v. Rhodes

          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previously in force at Arkansas State University campus in Jonesboro and the concomitant system-wide policy, which were repealed this spring.^[1] The Policy applied to faculty, staff, students, student organizations, and visitors.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 ...