Fitzgerald v. City of Portland

DANIEL FITZGERALD, et al., Plaintiffs, v. CITY OF PORTLAND, et al., Defendants.

Docket No. 2:14-cv-00053-NT

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

October 27, 2014

ORDER ON DEFENDANTS' MOTION TO DISMISS

Before the Court is the Defendants' motion to dismiss the Plaintiffs' First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (ECF No. 41). For the reasons stated below, the motion is GRANTED in part and DENIED in part.

BACKGROUND

The Plaintiffs in this action are Daniel Fitzgerald, Marguerite Fitzgerald, in their own right and as next of kin to minor children, L.M.F., J.P.F., and Leslie Sneddon (the "Plaintiffs"). The Defendants are the City of Portland, Michael F. Brennan, Kevin J. Donoghue, David A. Marshall, Edward J. Suslovic, Cheryl A. Leeman, John R. Coyne, Jon C. Hinck, Nicholas M. Mavodones, Jr., and Jill C. Duson (the "Defendants").

On November 18, 2013, the Portland City Council voted 9-0 to enact an ordinance titled "Access to Reproductive Health Care Facilities" (the "Ordinance"). See Portland, Me., Code § 17-108-112 (2013) (repealed July 7, 2014). The Ordinance prohibited anyone other than clinic visitors, employees, law enforcement, passers-by,and public-transit users from entering within thirty-nine feet of any reproductive health care facility ("RHCF") in Portland. Id. at § 17-110. The Ordinance affected a single RHCF, run by Planned Parenthood of Northern New England, located in downtown Portland. The stated purpose of the Ordinance was "to balance both the fundamental right to assemble peacefully and to demonstrate on matters of public concern, with the right to seek and obtain reproductive health care services." Id. at § 17-108(e).

The Ordinance was modeled after a Massachusetts law passed in 2007, titled "An Act Relative to Public Safety at Reproductive Health Care Facilities" (the "Massachusetts Act"). See Mass. Gen. Laws, ch. 266 § 120E ½ (2014), invalidated by McCullen v. Coakley, 134 S. Ct. 2518 (2014), repealed by 2014 Mass. Legis. Serv. Ch. 197 (S.B. 2283) (West). The Massachusetts Act withstood repeated constitutional challenges in the District of Massachusetts and the First Circuit. See McCullen v. Coakley, 573 F. Supp. 2d 382 (D. Mass. 2008) (denying facial challenge to the Massachusetts Act); McCullen v. Coakley, 571 F.3d 167 (1st Cir. 2009) (affirming denial of facial challenge); McCullen v. Coakley, 759 F. Supp. 2d 133 (D. Mass. 2010) (dismissing all but one as-applied challenge to the Massachusetts Act); McCullen v. Coakley, 844 F. Supp. 2d 206 (D. Mass. 2012) (dismissing remaining as-applied challenge to the Massachusetts Act); McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013) (affirming dismissal of as-applied challenges).¹ Some of the McCullen plaintiffsappealed, and on June 24, 2013, the Supreme Court granted certiorari. See McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013), cert. granted, 81 U.S.L.W. 3557 (U.S. June 24, 2013) (No. 12-1168).

On February 12, 2014, with McCullen v. Coakley still pending before the Supreme Court, Plaintiffs initiated the present action by filing a complaint (the "Original Complaint") (ECF No. 1) claiming that the Ordinance, on its face and as applied, violated rights guaranteed by the First and Fourteenth Amendments of the Constitution. On March 10, 2014, Plaintiffs filed an amended complaint (the "Amended Complaint") (ECF No. 16) and a motion for a preliminary injunction enjoining enforcement of the Ordinance (ECF No. 17). Shortly thereafter, the Defendants filed a motion to stay the case pending a ruling from the Supreme Court (ECF No. 21).

In April of 2014, the Defendants filed a motion to dismiss the Amended Complaint ("MTD I") (ECF No. 23) as it pertained to each of the individually-named City Council members (the "Individual Defendants" or the "City Council Members"), asserting that they were entitled to qualified immunity. The Defendants argued that notwithstanding the Supreme Court's grant of certiorari, when the City Council Members voted to pass the Ordinance, they were acting pursuant to valid First Circuit authority upholding the similar Massachusetts Act regarding buffer zones around reproductive health care centers. MTD I 5 (citing McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013)).

This Court denied the Defendants' motion to stay the case on May 28, 2014 (ECF No. 33). The Supreme Court held on June 26, 2014, that the Massachusetts Act was not narrowly tailored to serve a significant governmental interest, and therefore violated the First Amendment. See McCullen v. Coakley, 134 S. Ct. 2518 (2014). At that time, this Court had not yet ruled on the Plaintiffs' Preliminary Injunction Motion or the Defendants' Motion to Dismiss I.

In response to the Supreme Court's McCullen ruling, the City Council met on July 7, 2014 and voted to repeal the Ordinance, effective immediately. See July 8, 2014 Aff. of Katherine L. Jones (ECF No. 41-1); Portland City Council Order 10-14/15 (ECF No. 41-2). The Defendants now move to dismiss Plaintiffs' claims pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6),² asserting that the City Council's repeal of the Ordinance has rendered all issues before this Court moot and that Plaintiffs have no remaining claims upon which relief may be granted. Defs.' Mot. to Dismiss Pls.' First Am. Compl. 3 ("MTD II") (ECF No. 41).

LEGAL STANDARD

Lack of Subject-Matter Jurisdiction: Rule 12(b)(1)

" 'The doctrine of mootness enforces the mandate that an actual controversy must be extant at all stages of the review, not merely at the time the complaint is filed.' " Davidson v. Howe, 749 F.3d 21, 26 (1st Cir. 2014) (quoting Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 52 (1st Cir. 2013)). " 'Simply stated, a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome.' " Am. Civil Liberties Union of Mass., 705 F.3d at 52 (quoting D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50, 54 (1st Cir. 1999)). Further, " '[i]f events have transpired to render a court opinion merely advisory, Article III considerations require dismissal of the case.' " Am. Civil Liberties Union of Mass., 705 F.3d at 52-53 (quoting Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003)). The party raising mootness has the burden of establishing it. Davidson, 749 F.3d at 26 (citing Am. Civil Liberties Union of Mass., 705 F.3d at 52).

Motion for Judgment on the Pleadings: Rule 12(c)

A motion for judgment on the pleadings pursuant to Rule 12(c)³ "is treated much like a Rule 12(b)(6) motion to dismiss." Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citing Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir. 2007)). "Because such a motion calls for an assessment of the merits of the case at an embryonic stage, the court must view the facts contained in the pleadings in the lightmost favorable to the nonmovant and draw all reasonable inferences therefrom to the nonmovant's behoof." R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006) (internal citations omitted). In assessing a Rule 12(c) motion a "court may supplement the facts contained in the pleadings by considering documents fairly incorporated therein and facts susceptible to judicial notice." Id. To withstand a Rule 12(c) motion, "a complaint must contain factual allegations that 'raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true . . . .' " Perez-Acevedo, 520 F.3d at 29 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). In sum, "to survive a motion for judgment on the pleadings, the complaint must state a claim that is plausible on its face." Pineiro v. Gemme, 937 F. Supp. 2d 161, 168-69 (D. Mass. 2013) (citing Twombly, 550 U.S. at 570).

DISCUSSION

The Defendants argue that because the challenged Ordinance is no longer in effect, Plaintiffs have received the relief they sought, and there is no longer any controversy for this Court to decide. MTD II 2-3. Plaintiffs counter that: (1) they suffered harm when they were prohibited from exercising their First Amendment rights throughout the existence of the Ordinance; (2) the City Council's repeal of the Ordinance has not rendered their requests for declaratory relief or nominal damages moot; and (3) the voluntary cessation exception prevents mootness where the CityCouncil is likely to enact a similar ordinance in the future. Pls.' Resp. to Defs.' Mot. to Dismiss 2, 4-6 ("Pls.' Resp.") (ECF No. 42).⁴

I. Claims Against the City

A. Equitable Relief

The City Council's repeal of the Ordinance has rendered Plaintiffs' claims for injunctive and declaratory relief moot. See Princeton Univ. v. Schmid, 455 U.S. 100, 102 (1982) (mooting challenge to a since-altered regulation); New England Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 18 (1st Cir. 2002) (mooting challenge to a former permitting policy and observing that "it would be pointless either to enjoin the enforcement of a regulation that is no longer in effect or to declare its constitutional status."); D.H.L. Assocs., Inc., 199 F.3d at 54-55 (mooting claims for injunctive and declaratory relief on former versions of an ordinance); see also Am. Civil Liberties Union of Mass., 705 F.3d at 53-54 (explaining that a controversy must be "immediate" and "real" for declaratory relief to withstand a mootness challenge). As the Supreme Court has instructed, federal courts "are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong." Spencer v. Kemna, 523 U.S. 1, 18 (1998). Indeed, "[a] declaratory judgment on the validity of a repealed ordinance is a textbook example of 'advising what the law would be upon a hypothetical state of facts.'" Nat'l. Adver. Co. v. City &;Cnty. of Denver, 912 F.2d 405, 412 (10th Cir. 1990) (quoting Blinder, Robinson & Co., Inc. v. U.S. S.E.C., 748 F.2d 1415, 1418 (10th Cir. 1984)) (mooting claims...