Summary
upholding the San Antonio rule at issue
Summary of this case from Torres v. City of San AntonioOpinion
No. SA-02-CA-0956-RF
October 7, 2003
ORDER GRANTING DEFENDANT CITY OF SAN ANTONIO'S MOTION FOR SUMMARY JUDGMENT
Before the Court are Defendant City of San Antonio's ("the City") Motion for Summary Judgment (Docket No. 25), filed on August 19, 2003, as well as Plaintiffs' Response and Defendant's Reply (Docket Nos. 26 30). After careful consideration of the arguments of both parties and of applicable law, the Court is of the opinion that Plaintiffs have failed to raise a genuine issue of material fact with respect to the Defendant City. Therefore, Defendant's Motion for Summary Judgment must be GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
This suit arises out of two hearings held by the City of San Antonio to discuss an annexation plan, approved by the City. Texas law requires the City to hold public hearings prior to adoption of an annexation plan, in order to allow for public comment. The City held hearings, in accordance with this requirement, during its City Council meetings on September 5, 2002 and September 12, 2002. A city ordinance provides that an individual wishing to address the City Council shall have three minutes to speak on an agenda item, with a nine-minute maximum time limit for any one meeting.
See TEX. LOC.GOV'T CODE ANN. §§ 43.0561, 43.063, 43.124 (Vernon 1999).
See San Antonio City Ordinance No. 93921.
At the September 5 meeting, Plaintiff Jack Finger signed the register to speak on five different agenda items; the annexation plan was the fifth item. In accordance with the City Ordinance, Finger was allowed to speak on the first three agenda items, but denied the opportunity to speak on the last two items, including the annexation plan. Finger did not attend the September 12 meeting.
Plaintiff Nazarite Perez registered to speak on three agenda items at the September 5 meeting, including the annexation plan. Perez was given an opportunity to speak on all three items. At the September 12 meeting, Perez registered to speak on five agenda items, with the annexation plan as the fifth item. As with Finger at the September 12 meeting, Perez was permitted to speak on the first three agenda items, but denied the opportunity to speak on the last two items, including the annexation plan.
Plaintiffs filed this suit, alleging violations of their constitutional rights under the First and Fourteenth Amendments to the United States Constitution, made actionable under 42 U.S.C. § 1983. Plaintiffs Finger and Perez argue that the City of San Antonio deprived them of their rights to free speech, due process, and equal protection by restricting their speech on the annexation issue. The remaining Plaintiffs contend that Defendants denied them their First Amendment right to hear Finger's and Perez's comments. On March 31, 2003, this Court entered an order granting Defendant Mayor Ed Garza's motion for summary judgment, finding that Plaintiffs failed to show a genuine issue of material fact as to whether the Defendant Mayor's conduct violated a constitutional right "of which a reasonable person would have known."
Harlow v, Fitzgerald, 457 U.S. 800, 818-19 (1982).
On August 19, 2003, the Defendant City filed its Motion for Summary Judgment, arguing that Plaintiffs' speech was appropriately and reasonably limited by a constitutional, content-neutral restriction as to time, place and manner. Plaintiffs respond that the City, acting through Mayor Ed Garza, deprived them of their constitutional right to free speech, due process and equal protection. Plaintiffs also complain that the City's approval of the annexation plan was improper.
STANDARD OF REVIEW
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." To support its motion for summary judgment, the moving party bears the "burden of showing the absence of a genuine issue of material fact, and for these purposes the material it lodge[s] must be viewed in the light most favorable to the opposing party."
FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
When a motion for summary judgment is properly made, the opposing party must then set forth "specific facts showing that there is a genuine issue for trial." However, "[t]he mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient" to defeat a motion for summary judgment. Furthermore, unsubstantiated assertions of an actual dispute will not suffice. Rather, the non-moving party must present sufficient evidence such that a rational trier of fact could find in its favor. Thus, to grant a motion for summary judgment, the Court must determine that, viewing the record in the light most favorable to the nonmovant, the moving party is nevertheless entitled to judgment as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442, n. 4 (5th Cir. 1993).
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
Section 1983 provides a federal cause of action against any person who, under color of state law, deprives another of his federal statutory or constitutional rights. Plaintiffs' § 1983 claims against the City stem from the City Ordinance limiting the amount of time for which a person may address the City Council, as well as Garza's enforcement of the Ordinance at the September 5, 2002 and September 12, 2002 public hearings.
When the state has opened public property for use by the public as a place for expressive activity, "[r]easonable time, place and manner regulations are permissible," so long as the regulations are content-neutral. Plaintiffs concede that regulations restricting each citizen to a limited period of time to speak at a public hearing are "the kind of reasonable time, place and manner restrictions that preserve a [government body's] legitimate interest in conducting efficient, orderly meetings." Plaintiffs nevertheless contend that the application of the City Ordinance to curtail their speech on September 5 and September 12, 2002 was unconstitutional. They argue that the application of the Ordinance was arbitrary and was not "a reasonable limit on the time, manner, and place of public speech as applied to deprive a person of their State-mandated right to speak at an annexation public hearing."
Perry Educ. Ass'n v. Perry Local Educators' Ass `n, 460 U.S. 37, 45 (1983) (citing, as examples, university meeting facilities and school board meetings).
"Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 271 (9th Cir. 1995) (citing City of Madison Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175 n. 8 (1976) and Wright v. Anthony, 733 F.2d 575, 577 (8th Cir. 1984) (upholding five-minute limitation in interest of conserving time and ensuring that all had an opportunity to speak)); see also Pls.' Reply to Def.'s Mot. for Summ. J. at 19.
Pls.' Reply to Def.'s Mot. for Summ. J. at 27.
Plaintiffs assert that, although Defendant may limit the length and number of times a speaker may address a particular issue in order to "promote order and systematic discourse," it "may not deny that person his/her First Amendment right to free speech." They submit that "there is no federal authority upholding the actions of a city mayor denying persons an opportunity to make a three-minute statement, when they signed up to speak at a public hearing, for which State law mandates the right of each person to speak." Finally, Plaintiffs allege that Defendant "arbitrarily and unreasonably" applied the three-issue limit to prevent them from speaking at the annexation public hearings.
Id.
Id. at 20.
As the Court discussed in its order granting summary judgment in favor of Mayor Garza, Plaintiffs cannot sufficiently state a claim under § 1983 insofar as the alleged violation of their rights merely arises from state law. In order to state a § 1983 claim, Plaintiffs must identify the federal statutory or constitutional right violated by the conduct or policy of Defendant. Although a state may opt to provide broader civil protections to its citizens than is offered under federal law, the citizens do not thereby gain an equivalent broader federal right.
See 42 U.S.C. § 1983; Conn v. Gabbert, 526 U.S. 286, 290 (1999).
Id. 42 U.S.C. § 1983.
See generally Fields v. City of South Houston, 922 F.2d 1183, 1189 (5th Cir. 1991) ("Accordingly, a federal civil rights action will not lie for a warrantless misdemeanor arrest in violation of state law. Section 1983 is a federally created cause of action to redress civil rights violations. `The states are free to impose greater restrictions on arrests, but their citizens do not thereby acquire a greater federal right.'"(citations omitted)).
Defendant argues, and the Court agrees, that Plaintiffs essentially contest the City's action in approving the annexation and the manner in which the hearings regarding annexation were noticed. To the extent that this accurately reflects the argument Plaintiffs wish to make, section 1983 provides no remedy. Moreover, the evidence demonstrates that the hearings were properly noticed by the City. To the extent that Plaintiffs argue that the City's ordinance limiting the speech of individuals at hearings violates their constitutional rights, then their claim fails because the City Ordinance in question is a valid exercise of a constitutionally permissible restriction on the time, place and manner of speech.
D's Mot. Summ. J., at 5.
See TEX. Loc, GOV'T CODE § 43.124. See also D's Mot. Summ. J., Ex. 5, 6.
The Ordinance in question in this case allows speakers to address the council for three minutes at a time, for each of as many as three issues per meeting. Plaintiffs themselves cite authorities upholding similar regulations. Plaintiffs argue, however, that the time restrictions must apply to each issue — i.e., that Defendant may regulate the length of discussion on each issue, but not the number of issues on which Plaintiffs may speak. Although Plaintiffs insist that there is "no federal authority" upholding the type of restriction in this case, Plaintiffs likewise fail to cite any precedent invalidating any similar regulation. In other words, Plaintiffs have not established, and under applicable case law cannot establish that the City's ordinance violated a federal right.
See Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 271 (9th Cir. 1995) (citing City of Madison Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175 n. 8 (1976) and Wright v. Anthony, 733 F.2d 575, 577 (8th Cir. 1984)).
Pls.' Reply to Def.'s Mot. for Summ. J. at 20.
Plaintiffs claim that the City might have avoided a violation of federally protected rights by convening "two additional public hearings pursuant to State law prior to taking any legislative action toward adoption of the proposed annexation ordinance." This argument admits its own defeat. In conceding that different time, place and manner restrictions would pass constitutional muster, Plaintiffs lose ground from their claim that time, place and manner restrictions violate their federal rights in the context of an annexation hearing. The City's use of Ordinance 93921 to regulate individuals' speech is an appropriate and constitutional limitation, that does not give rise to a claim under § 1983.
Pls.' Reply to Def.'s Mot. for Summ. J., at 14.
The Court finds that the Ordinance in question — restricting speakers to three-minute slots on up to three agenda items per meeting, or nine minutes total — constitutes a reasonable effort by the City to "serve its informational needs while rationing its time." As the Court has noted in two prior Orders, Plaintiffs were given the opportunity to speak on the annexation issue, but chose to speak on other topics instead. Furthermore, Plaintiff Finger choose not to avail himself of his opportunity to speak at the second hearing. Notwithstanding Plaintiffs' conclusory assertions that Defendant's actions violated their constitutional rights, the Court finds the restriction in this case to be both reasonable and content-neutral.
City of Madison, 429 U.S. at 177 (Stewart, J., concurring).
Additionally, Plaintiffs Finger and Perez have presented no evidence to support their contention that the Ordinance was applied arbitrarily and unreasonably, in violation of their due process and equal protection rights. Defendant correctly notes that the mere allegation of arbitrariness is insufficient to overcome a motion for summary judgment. Plaintiffs reference the minutes of the September 12 hearing in support of their assertion. However, the minutes of that meeting reflect no arbitrary use of Ordinance 93921, through the conduct of Mayor Garza, on that date. Moreover, the evidence reflects that on that date, Plaintiff Perez actually did speak at the hearing and that Plaintiff Finger's failure to speak was due to his own failure to avail himself of the opportunity, not as a result of the City Ordinance.
D's Mot. Summ. J., Ex. 3, 4.
Plaintiffs aver that the evidence need reflect that Mayor Garza, presumably on behalf of the City, considered the public interest in extending additional minutes to the speakers in order to honor the constitutional rights of both the speakers and those in the audience. On the contrary, the evidence need not so reflect. The mere conclusory allegation that implementation of reasonable and constitutional limitations on the time, place and manner of speech was arbitrary is insufficient to overcome summary judgment. The Court finds that the remaining Plaintiffs have not demonstrated that Defendant's actions violated their First Amendment rights to benefit from Finger's and Perez's comments.
Pls' Reply to D's Mot. Summ. J., at 10.
Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442, n. 4 (5th Cir. 1993). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
The Court therefore finds that Plaintiffs have failed to show a genuine issue of material fact as to whether the City violated their federally protected rights in its use of reasonable time, place and manner restrictions. Defendant's Motion for Summary Judgment should therefore be GRANTED.
CONCLUSION
The Court finds that the City has demonstrated the absence of a genuine issue of material fact regarding a deprivation of their constitutional rights to free speech. Plaintiffs have not presented sufficient evidence to support a reasonable finding in their favor on this issue. Defendant is therefore entitled to summary judgment with respect to the claims against it.
It is therefore ORDERED that the Defendant City's Motion for Summary Judgment (Docket No. 25) is GRANTED and Plaintiffs' claims against the Defendant City are DISMISSED WITH PREJUDICE.