Traditionalist Am. Knights Klan v. City of Desloge, Case No. 4:13-CV-810 NAB

TRADITIONALIST AMERICAN KNIGHTS OF THE KU KLUX KLAN, et al., Plaintiffs, v. CITY OF DESLOGE, MISSOURI, Defendant.

Case No. 4:13-CV-810 NAB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

February 23, 2016

MEMORANDUM AND ORDER

The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). Plaintiffs Traditionalist American Knights of the Ku Klux Klan and Imperial Wizard Frank Ancona (collectively "KKK") allege free speech and due process violations related to two iterations of an ordinance prohibiting solicitation and distribution in the roadways of Defendant City of Desloge, Missouri ("City"). [Doc. 24.] This Court previously granted a preliminary injunction barring enforcement of the ordinance. [Doc. 41.] The Eighth Circuit Court of Appeals reversed and remanded for proceedings not inconsistent with its opinion. Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge, Mo., 775 F.3d 969 (8th Cir. 2014). On remand, the parties agreed to file early dispositive motions before conducting any additional discovery. This matter is now before the Court on the City's Motion for Summary Judgment [Doc. 73] and the KKK's Motion for Partial Summary Judgment [Doc. 75]. Both motions have been fully briefed. For the reasons set forth below, the Court will grant the City's motion with respect to Counts I and II of the KKK's Amended Complaint, deny the City's motion with respect to Count III, and deny the KKK's motion.

I. The City's Motion for Summary Judgment

The KKK's Amended Complaint raises three counts. [Doc. 24.] Counts I and II challenge a repealed prior version of the City's ordinance ("repealed ordinance"). Count III challenges the current ordinance. The City argues that Counts I and II should be dismissed as moot and that it is entitled summary judgment on Count III because the Eighth Circuit's decision is the law of the case. The KKK counters that it suffered harm under the repealed ordinance and maintains a claim for nominal damages and that the Eighth Circuit's decision was a provisional one based on the limited preliminary injunction record. The Court agrees with the City that Counts I and II are moot. However, the Court finds that the Eighth Circuit's decision should not be afforded law-of-the-case status and therefore the KKK should be allowed to proceed with Count III.

A. Counts I and II Challenging the Repealed Ordinance Are Moot

"Mootness is akin to the doctrine of standing because the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678, 687 (8th Cir. 2012) (en banc) (internal quotations omitted). "When a law has been amended or repealed, [claims] seeking declaratory or injunctive relief for earlier versions are generally moot unless the problems are capable of repetition yet evading review." Id. (internal quotations omitted). If there is a "reasonable expectation" that an earlier version will be reenacted, a claim challenging that version is not moot. Id. A request for nominal damages that would have no more effect than declaratory or injunctive relief will not save an otherwise moot claim. Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602, 611 (6th Cir. 2008) (cited with approval in Phelps-Roper, 697 F.3d. at 687).

Here, there is no indication that the City intends to enforce or reenact the repealed ordinance. Enacted shortly after the KKK filed this action, the current ordinance clarifies and narrows the scope of the repealed ordinance. By contrast with the repealed ordinance, it defines key terms, explicitly states that solicitation and distribution are permissible on sidewalks and in city parking lots and parks, and provides for severability of the solicitation and distribution provisions.¹ The current ordinance reflects the City's intent to exempt expressive activity on sidewalks, curbs, and parking lots and addresses infirmities that led the Honorable Audrey G. Fleissig to enjoin the original version of the ordinance in previous litigation. Traditionalist Am. Knights of Ku Klux Klan v. City of Desloge, Mo., 914 F. Supp. 2d 1041, 1045, 1050 (E.D. Mo. 2012); see Phelps-Roper, 697 F.3d at 687 (finding no reasonable expectation of reenactment where funeral protest ordinance was amended in response to considered Sixth Circuit decision in emerging area of constitutional law). In addition, the severability clause cabined judicial review in favor of the City in this litigation. [Doc. 41 p. 8.] The City has not arrested or prosecuted KKK members for engaging in prohibited activity under the repealed ordinance and specifically disavowed any intent to do so at the preliminary injunction hearing. Finally, the KKK is capable of challenging any further changes to the ordinance, Phelps-Roper, 697 F.3d at 687, and it would waste judicial resources to consider the constitutionality of the repealed ordinance, Morrison, 521 F.3d at 611. The Court finds that Counts I and II challenging the repealed ordinance are moot.

B. The Eighth Circuit's Decision Is Not the Law of the Case

The City argues that it is entitled to summary judgment on Count III because the Eighth Circuit's decision should be afforded law-of-the-case status. The Court disagrees. Due to the limited purpose of a preliminary injunction and the use of procedures that are less formal and evidence that is less complete than a trial on the merits, "it is generally inappropriate for a federal court at the preliminary-injunction stage to give a final judgment on the merits." Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 1834, 68 L. Ed. 2d 175 (1981). The Eighth Circuit has "long held that findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding." U.S. Sec. & Exch. Comm'n v. Zahareas, 272 F.3d 1102, 1104-05 (8th Cir. 2001) (internal quotations omitted). "A preliminary determination of likelihood of success on the merits in a ruling on a motion for preliminary injunction is ordinarily tentative, pending a trial or motion for summary judgment." Goodheart Clothing Co. v. Laura Goodman Enterprises, Inc., 962 F.2d 268, 274 (2d Cir. 1992). "It would therefore be anomalous at least in most cases ... to regard the initial ruling as foreclosing the subsequent, more thorough consideration of the merits that the preliminary injunction expressly envisions." Id.

This Court sees no reason to depart from the general rule that a preliminary injunction decision will not foreclose further proceedings on the merits. The Eighth Circuit began its analysis by reciting the preliminary injunction standard, repeatedly referenced the preliminary injunction record, and suggested evidentiary deficiencies that might change the outcome on the merits, namely, evidence indicating that "the city's real motive for curtailing speech activities was to discriminate against particular messages." Traditionalist Am. Knights of the Ku Klux Klan, 775 F.3d at 974, 979. Absent an explicit directive from the Eighth Circuit that the decision should be treated as on the merits, this Court will not afford it law-of-the-case status. See Pitt News v. Pappert, 379 F.3d 96, 104-05 (3d Cir. 2004) (Alito, J.) (holding preliminary injunction decision by prior panel was not binding on later panel reviewing final judgment unless prior panel had "taken an unequivocal position on the merits," "particularly where important First Amendment issues are raised"). The cases cited by the City are inapposite. Naser Jewelers, Inc. v. City of Concord, N.H., 538 F.3d 17 (1st Cir. 2008) and Entergy, Arkansas, Inc. v. Nebraska, 241 F.3d 979, 987 (8th Cir. 2001) both involved courts of appeals determining whether their prior decisions should be afforded law-of-the-case status following additional proceedings in the district court. The Court will deny the City's motion for summary judgment as to Count III.

II. The KKK's Motion for Partial Summary Judgment

In ruling on the KKK's motion for preliminary injunction, this Court found that the KKK could challenge the distribution provisions of the ordinance, but lacked standing to challenge the solicitation provisions. [Doc. 41 p. 8.] The Court further found that the distribution provisions were content neutral and therefore subject to intermediate scrutiny. [Id. at 9.] On appeal, the KKK conceded that the distribution provisions were content neutral under prevailing precedent. Following the Eighth Circuit's decision in this case, the Supreme Court decided Reed v. Town of Gilbert, Arizona and vacated the First Circuit's judgment in Thayer v. City of Worcester, Massachusetts, remanding the case for further consideration in light of Reed. 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015); 135 S. Ct. 2887, 192 L. Ed. 2d 918 (2015). The KKK contends that Reed and the Supreme Court's decision vacating Thayer constitute intervening authority that alters the content neutrality analysis in this case. The KKK argues that, under Reed, the City's ordinance is content based on its face and therefore the KKK is entitled to summary judgment on Count III. The Court disagrees.

In Reed, the Supreme Court struck down a municipal code that applied differing restrictions to signs depending on whether they were "ideological" (communicating a message or idea), "political" (designed to influence the outcome of an election), or a "temporary directional sign" (directing the public to church or some other qualifying event). 135 S. Ct. at 2227. Reed is notable in that it clarified the content based inquiry and arguably expanded the universe of content discrimination. The "crucial first step" is to evaluate a law on its face, without regard for the law's purpose. 135 S. Ct. at 2228. A law is content based if it targets speech based on communicative content, including topic, idea, or subject matter, and, more...