Beavers v. City of Jackson

439 F.Supp.3d 824

Barbara BEAVERS, et al., Plaintiffs

v.CITY OF JACKSON, Mississippi, Defendant

CIVIL ACTION NO. 3:19-CV-735-DPJ-FKB

United States District Court, S.D. Mississippi, Northern Division.

Signed February 12, 2020

Aaron Randall Rice, Mississippi Justice Institute, Jackson, MS, Steven James Griffin, Daniel, Coker, Horton & Bell, Jackson, MS, for Plaintiffs.

James Anderson-City Gov, Jr., Office of the City Attorney, Jackson, MS, Timothy Craig Howard-City Gov, City of Jackson, Jackson, MS, for Defendant.

ORDER

Daniel P. Jordan III, CHIEF UNITED STATES DISTRICT JUDGE

This challenge to a City of Jackson Ordinance "Prohibiting Certain Activities Near Health Care Facilities" is before the Court on a motion to remand. The sole question raised in the motion is whether the Court has subject-matter jurisdiction. The Court finds that it does not. Therefore, Plaintiffs' motion to remand [3] is granted.

I. Background

Barbara Beavers, Monica Cable, Laura Knight, and Pamela Miller (collectively "Plaintiffs") volunteer for Sidewalk Advocates for Life, a group that "regularly provide[s] information about alternatives to abortion to individuals patronizing the Jackson Women's Health Organization, an abortion facility located in Jackson, Mississippi[.]" Pls.' Notice of Appeal [1-1] ¶¶ 11, 14. In accordance with the organization's mission, Plaintiffs "regularly congregate with others near the entrance of the property of the abortion facility, in order to engage in speech," sometimes shouting at the facility's patrons. Id. ¶¶ 15–16.

In October 2019, Defendant City of Jackson, Mississippi ("the City"), adopted an ordinance that places limits on how close persons can come to others for the purpose of distributing information/protesting. Id. ¶ 20. The ordinance also restricts how close to the Jackson Women's Health Organization and its entrance persons can protest. Id. ¶¶ 21–22.

Pursuant to Mississippi Code § 11-51-75, Plaintiffs appealed the City's decision to enact the ordinance to the Circuit Court of Hinds County, Mississippi. They allege that the ordinance violates their right to (1) free speech under article 3, section 13 of the Mississippi Constitution ; (2) peacefully assemble under article 3, section 11 of the Mississippi Constitution ; (3) due process of law under article 3, section 14 of the Mississippi Constitution ; and (4) equal protection of the law under article 3, section 14 of the Mississippi Constitution. Pls.' Notice of Appeal [1-1] ¶¶ 34–70. They also say the ordinance was "beyond the scope or power granted to the Jackson City Council by statute, ... was not supported by substantial evidence, ... [and] was arbitrary and capricious[.]" Id. ¶¶ 71–73.

In their Notice of Appeal, Plaintiffs studiously avoid premising any of their claims on the United States Constitution. They do, however, state that " Article 3, Section 13 of the Mississippi Constitution is more protective of the individual's right to freedom of speech than is the First Amendment to the United States Constitution, since the Mississippi Constitution makes free speech worthy of religious veneration." Pls.' Notice of Appeal [1-1] ¶ 35.

The City removed the case claiming that "arising under" or "federal question" jurisdiction existed under 28 U.S.C. § 1331. Def.'s Notice of Removal [1] at 1. Plaintiffs now seek remand, contending that this Court lacks subject-matter jurisdiction. They also seek attorneys' fees and costs.

II. Standard

Under 28 U.S.C. § 1441(a), any state-court case "of which the district courts of the United States have original jurisdiction" may be removed to federal court. "The removing party bears the burden of showing that federal jurisdiction exists and that removal is proper." Manguno v. Prudential Prop. & Cas. Ins. Co. , 276 F.3d 720, 723 (5th Cir. 2002). Accordingly, "[a]ny ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand." Id.

Federal courts have federal-question jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "Under the well-pleaded complaint rule, ‘a federal court has original or removal jurisdiction only if a federal question appears on the face of the plaintiff's well-pleaded complaint; generally, there is no federal jurisdiction if the plaintiff properly pleads only a state law cause of action.’ " Gutierrez v. Flores , 543 F.3d 248, 251–52 (5th Cir. 2008) (quoting Bernhard v. Whitney Nat'l Bank , 523 F.3d 546, 551 (5th Cir. 2008) ).

III. Analysis

A. Jurisdiction

In its Notice of Removal, the City says there are three bases for jurisdiction: (1) Plaintiffs' free-speech claim raises a substantial federal issue under the First Amendment; (2) Plaintiffs' allegation that the Mississippi Constitution makes "free speech worthy of religious veneration" raises a claim under the federal Establishment and Free Exercise Clause; and (3) Plaintiffs assert that their rights under the Mississippi Constitution "supersede the Due Process and Equal Protection provision of the United States Constitution," thereby implicating the Supremacy Clause. Notice of Removal [1] ¶¶ 2–4. The City does not contend that Plaintiffs' peaceful-assembly, due-process, or equal-protection claims confer federal jurisdiction. Plaintiffs argue that their challenges to the City's ordinance relies exclusively on state-constitutional grounds and do not implicate the federal constitution.

1. Free Speech

The City acknowledges that Plaintiffs' free-speech claim is raised under state law but argues that the claim is "inextricably entwined with rights created by the United States Constitution" and "at the center of controversial and evolving federal jurisprudence[.]" Def.'s Resp. [9] at 6, 7. Plaintiffs say the Court need not examine the United States Constitution to decide their state-law claim. Pls.' Reply [10] at 5.

"[A] case can ‘aris[e] under' federal law in two ways": "when federal law creates the cause of action asserted" or when a "state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities[.]" Gunn v. Minton , 568 U.S. 251, 257–58, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg , 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) ).

Accordingly, the parties dispute the latter avenue to federal jurisdiction, which applies in a " ‘special and small category’ of cases[.]" Id. at 258, 133 S.Ct. 1059. In such cases, "[a] federal question exists ‘only [in] those cases in which a well-pleaded complaint establishes ... that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.’ " Singh v. Duane Morris LLP , 538 F.3d 334, 33–38 (5th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr. , 463 U.S. 1, 27–28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ). So "federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." Gunn , 568 U.S. at 258, 133 S.Ct. 1059.

Here, Plaintiffs brought this action pursuant to section 11-51-75 of the Mississippi Code. Pls.' Notice of Appeal [1-1] ¶ 1. The statute permits "[a]ny person aggrieved by a judgment or decision of the board of supervisors of a county, or the governing authority of a municipality" to "appeal the judgment or decision to the circuit court of the county in which the board of supervisors is the governing body or in which the municipality is located." Miss. Code. § 11-51-75. Plaintiffs use this statute to challenge the City's ordinance under article 3, sections 11, 13, and 14 of the Mississippi Constitution. Pls.' Notice of Appeal [1-1] ¶¶ 37, 50, 63, 70. Thus, if federal-question jurisdiction exists, Plaintiffs' free-speech claim must "necessarily raise a stated federal issue, actually disputed and substantial[.]" Gunn , 568 U.S. at 258, 133 S.Ct. 1059.

The Fifth Circuit faced a nearly identical legal issue under Texas law in Carpenter v. Wichita Falls Independent School District , 44 F.3d 362 (5th Cir. 1995), abrogated on other grounds by Rivet v. Regions Bank of La. , 522 U.S. 470, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). In Carpenter , a school-district employee filed suit in Texas court alleging a violation of his free-speech rights under the Texas constitution as well as a state-law contract claim. Id. at 365. Like the City in this case, the school district in Carpenter argued that the employee's free-speech claim was " ‘essentially’ a federal claim in disguise." Id. at 367. The Fifth Circuit rejected the school district's argument, holding that it "disregard[ed] principles of federalism; it ignore[d] the superiority of state-court forums for state-law claims and denigrate[d] the state's authority to fashion independent constitutional law." Id. Additionally, the court explained that Texas courts' "reliance on the rules and reasoning of federal constitutional case law and scholarship in no way diminishe[d] the independence of the state right." Id. at 368. Thus, the Fifth Circuit concluded that "the Texas constitutional right to free speech is not essentially federal, and to present a Texas constitutional claim is not necessarily to present a federal claim." Id.

The same reasoning applies here. " ‘It is fundamental ... that state courts be left free and unfettered ... in interpreting their state constitutions.’ " Florida v. Powell , 559 U.S. 50, 56, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010) (quoting Minnesota v. Nat'l Tea Co. , 309 U.S. 551, 557, 60 S.Ct. 676, 84 L.Ed. 920 (1940) ). This is because "a state court is entirely free to read its own State's constitution more broadly than [federal courts]...