Opinion
No. SA-02-CA-0956-RF
March 31, 2003
ORDER GRANTING DEFENDANT GARZA'S MOTION FOR SUMMARY JUDGMENT
Before the Court are Defendant Mayor Ed Garza's ("Mayor Garza") Motion for Summary Judgment, filed on February 18, 2003, as well as Plaintiffs' Reply in Opposition to Defendant's Motion and Defendant's Reply to Plaintiffs' Reply. 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 Defendant Garza in his individual capacity. Therefore, Defendant's Motion for Summary Judgment should be GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
This suit arises out of an annexation plan, approved by the City of San Antonio on August 22, 2002. Texas law requires the City to hold public hearings prior to adoption of the 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.
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 and Mayor Ed Garza 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 February 18, 2003, Defendant Mayor Garza filed his Motion for Summary Judgment, arguing that he is entitled to qualified immunity for Plaintiffs' claims against him in his individual capacity. Plaintiffs respond that Garza exceeded the scope of qualified immunity in this case and is therefore subject to suit.
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, 106 S.Ct. 2548, 2552 (1986).
Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (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, 106 S.Ct. 2505, 2512 (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, 106 S.Ct. 1348, 1356 (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. Government officials performing discretionary functions, however, are protected by qualified immunity against § 1983 claims "as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." More concretely, "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action, assessed in light of the legal rules that were `clearly established' at the time it was taken. To exceed the scope of qualified immunity, the action in question need not specifically have been held unlawful, but "in the light of preexisting law the unlawfulness must be apparent." A court's qualified immunity inquiry, therefore, is twofold. The court "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation."
Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038 (1987).
at 639, 107 S.Ct. at 3038 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39(1982)).
Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 535 n. 12, 105 S.Ct. 2806, 2820 n. 12 (1985) and Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98 (1986)).
Conn v. Gabbert, 526 U.S. 286, 290,119 S.Ct. 1292, 1295 (1999).
Plaintiffs' § 1983 claims against Garza in his individual capacity 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. Plaintiffs allege that "a reasonable mayor would have known that it was a violation of Plaintiffs' clearly established rights under the First Amendment for Defendant to deprive Plaintiffs Finger and Perez their rights to speak at the public hearings" on September 5 and September 12, 2002.
See Pls.' Reply to Def.'s Mot. for Summ. J. at 12 (Feb. 28, 2003).
The Supreme Court has held that, 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 Defendant's 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 an unreasonable restriction of their "State-mandated right to speak at an annexation public hearing." Plaintiffs assert that, although Defendant may limit the length and number of times a speaker may address a particular issue, he "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.
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55 (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, 97 So. Ct. 421, 426 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 26.
Id.
Id. at 19.
The Court first notes that, to the extent Plaintiffs' claims arise merely from a violation of state law, they have not sufficiently identified a deprivation of "federal rights." Plaintiffs have only stated a § 1983 claim, therefore, if they can show that Defendant's actions violated their federal statutory or constitutional rights.
Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 1295 (1999).
Id.;42U.S.C. § 1983.
The Ordinance in question in this case allows speakers to address the council for three minutes at a time, on up to 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 that Defendant's actions constituted a deprivation of a federal right, let alone that the right was "clearly established."
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, 97 S.Ct. 421, 426 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 19.
Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39 (1982).
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 previously noted in its Order denying Plaintiffs' Motion for Preliminary Injunction, Plaintiffs were given the opportunity to speak on the annexation issue, but chose to speak on other topics instead. 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, 97 S.Ct. at 427 (Stewart, J., concurring).
Additionally, Plaintiffs Finger and Perez have presented no evidence to support their contention that the Ordinance was applied arbitrarily and unreasonably. Relative to this finding, the Court also holds 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. The Court therefore finds that Plaintiffs have failed to show a genuine issue of material fact as to whether Defendant Mayor Garza's actions violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Defendant's Motion for Summary Judgment should therefore be GRANTED.
Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.
CONCLUSION
The Court finds that Defendant Garza has demonstrated the absence of a genuine issue of material fact regarding his defense of qualified immunity. 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 him in his individual capacity.It is therefore ORDERED that Defendant Garza's Motion for Summary Judgment is GRANTED.