CHURCH OF SCIENTOLOGY FLAG SERVICE ORG., INC., Plaintiff-Appellee,
v.
CITY OF CLEARWATER, et al., Defendants-Appellants.
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, et al., Plaintiffs-
Appellees,
v.
CITY OF CLEARWATER, FLORIDA, etc., et al., Defendants-Appellants.
CHURCH OF SCIENTOLOGY FLAG SERVICE ORG., INC., Plaintiff-Appellant,
v.
CITY OF CLEARWATER, et al., Defendants-Appellees.
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, et al., Plaintiffs-
Appellants,
v.
CITY OF CLEARWATER, FLORIDA, et al., Defendants-Appellees.
Nos. 84-3232, 84-3236, 84-3543 to 84-3546, 84-3574 and 84-3575.
United States Court of Appeals,
Eleventh Circuit.
Nov. 13, 1985.
Organizations brought actions challenging validity of repealed ordinance and
successor ordinance regulating charitable solicitations. The United States
District Court for the Middle District of Florida, Elizabeth A. Kovachevich,
J., declared first ordinance unconstitutional and permanently enjoined its
enforcement and declared second ordinance facially constitutional and
certified issue to the Court of Appeals for interlocutory appeal.
Consolidated appeals were taken. The Court of Appeals, Tjoflat, Circuit Judge,
held that: (1) issue of validity of ordinance which was repealed was moot and
should not have been decided by District Court; (2) record contained no facts
to support District Court's implied finding that religious organizations
challenging ordinances had standing; and (3) motions for leave to appeal
interlocutory orders were improvidently granted.
Vacated in part and affirmed in part.
[1] FEDERAL COURTS
Issue of validity of city ordinance regulating charitable solicitation was moot
at time district court decided it where ordinance had been repealed;
therefore, district court order enjoining ordinance's enforcement had to be
vacated.
[1] FEDERAL COURTS
Issue of validity of city ordinance regulating charitable solicitation was moot
at time district court decided it where ordinance had been repealed;
therefore, district court order enjoining ordinance's enforcement had to be
vacated.
[2] FEDERAL COURTS
Action that has become moot or academic does not present justiciable
controversy within case or controversy clause [U.S.C.A. Const. Art. 3, s 2,
cl. 1].
[3] CONSTITUTIONAL LAW
A case must consist of a present, live controversy in order to avoid advisory
opinions on abstract propositions of law in violation of case or controversy
clause [U.S.C.A. Const. Art. 3, s 2, cl. 1].
[4] FEDERAL CIVIL PROCEDURE
Determination as to whether plaintiff has made out justiciable case or
controversy within meaning of Constitution [U.S.C.A. Const. Art. 3, s 2]
requires that minimum constitutional standing requirements be demonstrated of
actual or threatened injury fairly traceable to challenged action, and
redressable by a favorable decision. U.S.C.A. Const. Art. 3, s 2, cl. 1.
[4] FEDERAL CIVIL PROCEDURE
Determination as to whether plaintiff has made out justiciable case or
controversy within meaning of Constitution [U.S.C.A. Const. Art. 3, s 2]
requires that minimum constitutional standing requirements be demonstrated of
actual or threatened injury fairly traceable to challenged action, and
redressable by a favorable decision. U.S.C.A. Const. Art. 3, s 2, cl. 1.
[5] MUNICIPAL CORPORATIONS
In action challenging constitutionality of city ordinance regulating charitable
solicitations, record contained no facts to support district court's implied
finding that organizations had standing to challenge constitutionality of
ordinance.
[6] FEDERAL CIVIL PROCEDURE
Standing is a matter of case or controversy requirement of Constitution
[U.S.C.A. Const. Art. 3, s 2], and district court is obliged to ensure that
the jurisdictional requirement is satisfied. U.S.C.A. Const. Art. 3, s 2,
cl. 1.
[7] MUNICIPAL CORPORATIONS
City's concession that it would not challenge standing of organization to bring
action challenging constitutionality of ordinance regulating charitable
solicitations was insufficient to establish standing.
[8] FEDERAL CIVIL PROCEDURE
Standing is a mixed question of fact and law, and to the extent that it is a
question of fact, court must find facts and recite them in a fashion that will
accommodate appellate review. Fed.Rules Civ.Proc.Rule 52(a), 28 U.S.C.A.
[9] FEDERAL COURTS
Organizations' motions for leave to appeal interlocutory orders declaring city
ordinance regulating charitable solicitations constitutional were improvidently
granted since there was no evidence as to whether parties had standing to bring
constitutional challenges, decision on constitutionality of ordinance was not
an order but merely an expression of district court's view of law unassociated
with disposition of any claim, and appellate ruling on facial validity of
ordinance would be purely advisory. 28 U.S.C.A. s 1292(b).
[10] INJUNCTION
In action challenging validity of city ordinance regulating charitable
solicitations, record was devoid of evidence indicating that organization
challenging ordinance established any right to preliminary injunction;
organization presented no evidence and established no criteria necessary for
granting of injunction.
*599 Lawrence R. Velvel, Rockville, Md., Alan S. Zimmet, City Atty's.
Office, Clearwater, Fla., for City of Clearwater.
*600 Eric M. Lieberman, New York, N.Y., Paul B. Johnson, Tampa, Fla., for
Church of Scientology Flag Service Org., Inc.
Lee Boothby, Berrien Springs, Mich., Frank M. Palmour, Maitland, Fla., for
Americans United for Separation of Church and State, et al.
James R. Wolf, Gen. Counsel, Harry Morrison, Jr., Asst. Gen. Counsel,
Tallahassee, Fla., for amicus Fla. League of Cities.
Appeals from the United States District Court for the Middle District of
Florida.
Before TJOFLAT and KRAVITCH, Circuit Judges, and DUMBAULD [FN*], District
Judge.
FN* Honorable Edward Dumbauld, U.S. District Judge for the Western
District of Pennsylvania, sitting by designation.
TJOFLAT, Circuit Judge:
These consolidated appeals involve challenges brought by two separate
plaintiff groups to the constitutionality of a repealed City of Clearwater,
Florida ordinance and its successor ordinance, both of which regulated
charitable solicitation. [FN1] The district court declared the first ordinance
unconstitutional and permanently enjoined its enforcement. The district court
declared the second ordinance facially constitutional and certified the issue
to this court for interlocutory appeal pursuant to 28 U.S.C. s
1292(b) (1982).
FN1. The plaintiffs' challenges were brought pursuant to 42 U.S.C. s
1983 (1982), which provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress. For the purposes of this section,
any Act of Congress applicable exclusively to the District of Columbia
shall be considered to be a statute of the District of Columbia.
The district court's jurisdiction over these claims was conferred by 28
U.S.C. s 1331 (1982) and 28 U.S.C. s 1343(a)(3) (1982).
We vacate the district court's first decision for want of a case or
controversy. We decline to pass on its second decision because leave to appeal
pursuant to section 1292(b) was improvidently granted.
I.
A.
On October 6, 1983, the City of Clearwater enacted Ordinance No. 3091-83 which
sought to regulate charitable solicitation. The ordinance required charitable
organizations that wished to solicit funds in Clearwater to register with the
City, maintain certain records, disclose the sources and uses of their
contributions, refrain from engaging in fraudulent solicitation practices, and
submit to an investigation by the City Attorney on the complaint of ten or more
individuals. The operative provisions of the ordinance were to become
effective on January 31, 1984.
Americans United for Separation of Church and State and several other named
plaintiffs (collectively "Americans United") brought a ten-count action in the
district court on January 20, 1984 to enjoin the City and its officers from
enforcing the ordinance. Each count raised a discrete constitutional claim.
[FN2] On January 23, the Church of Scientology Flag Service Organization,
Inc. ("Church of Scientology") brought a separate twelve-count action for
injunctive relief on grounds similar to those raised by Americans United.
[FN3] Both plaintiffs moved the court for a temporary restraining order
pursuant to Fed.R.Civ.P. 65(b); such an order became unnecessary, however,
when *601 the City agreed not to enforce the ordinance pending a final
determination on the merits.
FN2. Americans United alleged that the ordinance violated the due process
and equal protection clauses of the fourteenth amendment; the free speech,
free press, free exercise and establishment of religion clauses of the
first amendment; the commerce clause; and the right to privacy guaranteed
by the first, fourth, fifth, and ninth amendments.
FN3. The district court took no formal action on the City's motion to
consolidate the two cases. It therefore entered duplicate orders whenever
an issue arose common to both cases.
The court scheduled a final hearing on the plaintiffs' prayers for a permanent
injunction [FN4] on March 9, 1984. At the hearing, the parties requested the
court to limit the scope of the hearing to the facial validity of the ordinance
and defer to a subsequent hearing its decision on the plaintiffs' claims that
the ordinance was unconstitutional as applied. The court granted the parties'
request and confined the hearing to the facial constitutionality of the
ordinance. The parties presented no evidence save a brief stipulation between
the Church of Scientology and the City. They stipulated to the existence of
the ordinance, that the City was a municipality of the state, that the Church
of Scientology was a Florida corporation, and that it sells books and pamphlets
and pays some Scientologists commissions on funds they solicit. These parties
also stipulated that the court had subject matter jurisdiction over their case
and that venue was proper. Finally, the City advised the court that it would
not challenge the Church of Scientology's standing to bring the suit, except as
to those claims alleging that the ordinance violated the freedom of religion
clauses of the first amendment.
FN4. The plaintiffs prayed for preliminary and permanent injunctive
relief. Fed.R.Civ.P. 65(a)(2) authorized the court to consolidate their
application for a preliminary injunction with the trial of the action on
the merits.
Americans United and the City stipulated to nothing. On the standing issue,
the City maintained an inconsistent position. The City advised the court that
it would not contest any of the Americans United plaintiffs' standing to sue;
at the same time, the City said it reserved the right to challenge the standing
of any of such plaintiffs to prosecute any of their claims. The court did not
resolve this inconsistency.
After entertaining argument from counsel on the facial validity of the
ordinance, the court directed counsel to file post-hearing memorandums by March
16. On March 15, the City Commission enacted an emergency ordinance, No.
3479-84, as an amendment to Ordinance No. 3091-83. The amended ordinance
consisted of a comprehensive scheme to regulate charitable solicitation, making
substantial modifications to Ordinance No. 3091-83. It provided for the repeal
of any conflicting ordinance, thereby effectively repealing Ordinance No. 3091-
83. As an emergency ordinance, it would have automatically expired at the end
of ninety days if not passed as a non-emergency ordinance within that time.
[FN5]
FN5. The emergency ordinance explicitly provided for its expiration in 90
days. The Clearwater City Charter also mandated a 90-day expiration period
for emergency ordinances.
The City promptly notified the district court and the plaintiffs' counsel of
the amended ordinance. Rather than allowing the plaintiffs to amend their
complaints and adjudicate the validity of the new ordinance, the district
court, on March 28, proceeded to determine the facial validity of repealed
Ordinance No. 3091-83. Without specifying which of the several counts of the
plaintiffs' complaints it was deciding, the court declared the repealed
ordinance unconstitutional and permanently enjoined its application and
enforcement. The court held that the ordinance was overly burdensome of first
amendment rights, given the legitimate state interest involved, and was also
impermissibly vague and discriminatory.
The court justified its jurisdiction to adjudicate the validity of the
repealed ordinance on two grounds. First, a finding of no jurisdiction would
encourage cities to enact laws affecting the constitutional rights of its
citizens and, if challenged in court, simply amend such laws, thereby
prolonging the period of uncertainty as to citizens' rights. Second, the
court, noting the large number of cases pending on its docket, stated that it
could not permit the litigants to delay the completion of their cases by
amending their pleadings at the eleventh-hour and thereby occupy "someone
else's day" in court. Accordingly, an immediate *602 decision terminating
the instant cases was mandated. The court terminated the Americans United case
by granting the injunctive relief sought and "dismissing" the case. [FN6] The
court similarly terminated the Church of Scientology case, granting the relief
sought and dismissing eleven of the twelve counts of the plaintiff's
complaint. [FN7] The court's dispositive order failed to dispose of the
twelfth count, however. Consequently, the court retained jurisdiction of that
much of the Church of Scientology case.
FN6. As we indicate in the text supra, Americans United's complaint
contained 10 counts. The district court's dispositive order, however, did
not indicate the count or counts on which the court granted relief. We do
know that the court did not adjudicate the counts alleging that the
ordinance was unconstitutional as applied. As to these counts, the
dispositive order dismissing the case is open to two interpretations: the
court either dismissed them with prejudice, i.e., on the merits, or without
prejudice, meaning that the plaintiffs could refile their suit if the
district court's order was reversed on appeal. The problem such an order
presents a litigant occupying Americans United's position is that it must
cross appeal from the district court's disposition of the dismissed
counts. If not, it runs the risk that a subsequent court could read the
district court's dispositive order as dismissing the presumably
"unadjudicated" counts on the merits, thus barring the plaintiff from
litigating such counts. This problem will not arise in this instance,
however, because we vacate the district court's order and direct the
dismissal of the case without prejudice.
FN7. The court did not indicate whether these counts were being dismissed
with or without prejudice, thus raising the problem we discuss supra
note 6.
The City appealed the court's injunctive orders. We assume jurisdiction of
these appeals pursuant to 28 U.S.C. s 1292(a)(1) (1982). [FN8]
FN8. 28 U.S.C. s 1292(a)(1) (1982) provides that the courts of appeals
shall have jurisdiction of appeals from interlocutory orders of the
district courts granting or refusing to grant injunctions. These appeals
are Nos. 84-3232 (Church of Scientology) and 84-3236 (Americans United).
B.
On April 20, 1984, the Church of Scientology, seeking to enjoin the
enforcement of the emergency ordinance, No. 3479-84, moved the district
court for leave to amend the remaining count of its complaint. Its proposed
amendment presented the same constitutional challenges that had been addressed
to the original ordinance. At the same time, the Church of Scientology moved
the court to issue a temporary restraining order prohibiting the City from
enforcing Ordinance No. 3479-84. A hearing on these motions commenced one hour
after they were filed. The Church of Scientology appeared, but the City did
not. The court granted both motions and set April 27 as the date it would hear
the plaintiff's application for a preliminary injunction. The hearing was
continued, and the parties stipulated to an extension of the temporary
restraining order pending resolution of such application.
The City of Clearwater enacted Ordinance No. 3479-84 as a permanent ordinance
on May 17, 1984. On May 21, Americans United instituted a new action in the
district court seeking injunctive relief and challenging the constitutionality
of Ordinance No. 3479-84 on the grounds raised in its previous suit.
Simultaneously, Americans United moved for a temporary restraining order, which
the court granted. On May 24, the Church of Scientology also filed a new suit,
seeking the same relief as Americans United on essentially the same grounds.
At this point, the Church of Scientology had two identical suits pending, the
newly filed suit and the previous case whose complaint had been amended. [FN9]
On May 30, the court set July 13 as the date for a final hearing on both
plaintiffs' applications for injunctive relief. [FN10] Shortly thereafter, the
City moved, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the plaintiffs'
complaints for failure to state a claim *603 for relief, and Americans
United moved the court for summary judgment. On June 19, the court issued an
order informing the parties that it would limit the scope of the final hearing
to the question of the facial constitutionality of the new ordinance. [FN11]
FN9. The two Church of Scientology cases and the Americans United case
challenging the new ordinance were not consolidated by the district court.
See supra note 3.
FN10. The court consolidated plaintiffs' applications for preliminary
injunctive relief with the trial on the merits pursuant to Fed.R.Civ.P.
65(a)(2). See supra note 4.
FN11. Because the July 13 hearing was limited to the facial
constitutionality of the ordinance, the court must not have intended the
hearing to be the sort of final hearing apparently contemplated by its May
30 order. See supra note 10.
The final hearing was held, as scheduled, on July 13, 1984. When the hearing
began, the court announced that it would not consider the merits of any of the
pending motions or receive any evidence. Rather, the court would only address
the facial constitutionality of the ordinance in the abstract. During the
hearing it became apparent that the court was concerned with one other issue,
the plaintiffs' standing to challenge the ordinance. When the City's attorney
stated, in response to the court's inquiry as to his position, that the City
was not contesting the plaintiffs' standing at that time, the court proceeded
to the merits of their claims that the ordinance was unconstitutional on its
face.
After hearing the argument of counsel, the court stated that, in its view,
each and every section of the amended ordinance was facially constitutional,
and, on July 23, the court entered written orders to that effect in the two
Church of Scientology cases and the Americans United case. The orders stated,
in addition, that the facial constitutionality of the ordinance constituted a
controlling question of law as to which there was substantial ground for
difference of opinion and that an immediate appeal pursuant to 28 U.S.C. s
1292(b) (1982) [FN12] may materially advance the ultimate termination of the
litigation. An administrative panel of this court subsequently granted the
plaintiffs leave to appeal from these interlocutory orders. [FN13]
FN12. 28 U.S.C. s 1292(b) (1982) provides that:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order
involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation, he
shall so state in writing in such order. The Court of Appeals which would
have jurisdiction of an appeal of such action may thereupon, in its
discretion, permit an appeal to be taken from such order, if application is
made to it within ten days after the entry of the order: Provided,
however, that application for an appeal hereunder shall not stay
proceedings in the district court unless the district judge or the Court of
Appeals or a judge thereof shall so order.
FN13. These appeals are Nos. 84-3574 (Church of Scientology) and 84-
3575 (Americans United).
At the July 13 hearing, the district court indicated that, although the new
ordinance was facially valid, it would enjoin the City from enforcing the
ordinance pending our disposition of any section 1292(b) appeals that may be
taken. The City objected, contending that the court's decision upholding the
ordinance rendered an injunction inappropriate and that, at the very least, the
City should be able to enforce the ordinance's less burdensome provisions. On
July 23, the court, after issuing the orders declaring the ordinance valid,
issued a second set of orders converting the still extant temporary restraining
orders to preliminary injunctions prohibiting the City from enforcing the
portions of the ordinance that dealt with a charitable organization's
obligation to register with the City and to maintain certain records. The
court gave no reasons for this action.
The City did not appeal from this preliminary injunction. The Church of
Scientology has appealed, however, contending that the court erred in declaring
the ordinance constitutional and that it should have enjoined the enforcement
of the ordinance in its entirety. [FN14]
FN14. Jurisdiction over these appeals (Nos. 84-3543 and 84-3545) is
conferred by 28 U.S.C. s 1292(a)(1) (1982). See supra note 8.
C.
On July 31, 1984, the Church of Scientology, in an effort to get the district
court to rule on its claims that the new ordinance *604 was unconstitutional
as applied, moved the district court, in both of its cases, for a temporary
restraining order prohibiting the City from enforcing the ordinance and
requested the court to schedule an evidentiary hearing on its undisposed
application for a preliminary injunction. A hearing on the motion for a
temporary restraining order was held two days later. The Church of Scientology
and the City appeared and presented argument. At the conclusion of the
hearing, the court announced from the bench that it would deny the motion and
would not give the Church of Scientology a hearing on its application for a
preliminary injunction. Later in the day, the court issued written orders
denying the plaintiff's motion for a temporary restraining order and its
application for a preliminary injunction. The Church of Scientology appeals
from these orders. [FN15]
FN15. Jurisdiction over these appeals (Nos. 85-3544 and 84-3546) is
conferred by 28 U.S.C. s 1292(a)(1) (1982). See supra note 8.
After the parties' perfected their respective appeals, the Church of
Scientology moved this court for an injunction prohibiting the City from
enforcing Ordinance No. 3479-84 pending our disposition of such appeals. See
Fed.R.App.P. 8. An administrative panel of this court granted the motion
without opinion.
In deciding the parties' appeals, we first dispose of the district court's
orders prohibiting the City from enforcing the repealed ordinance, No. 3091-
83. We vacate those injunctive orders principally because the controversy they
adjudicated was, and is, moot. Second, we dismiss the section 1292(b)
appeals from the district court's determination that the new ordinance, No.
3479-84, is facially constitutional because leave to prosecute these appeals
was improvidently granted. Third, we affirm the district court's refusal to
grant the Church of Scientology's applications for a preliminary injunction
because the Church failed to establish the criteria necessary for the granting
of preliminary injunctive relief.
II.
A.
[1] The City of Clearwater has appealed from the district court's order in
both the Americans United and the Church of Scientology cases declaring
repealed Ordinance No. 3091-83 unconstitutional and permanently enjoining its
enforcement. Because we conclude that the issue of the ordinance's validity
was moot at the time it was decided, we vacate the district court's orders
enjoining the ordinance's enforcement and remand the two cases with
instructions that they be dismissed without prejudice. [FN16]
FN16. Because we do not decide these appeals on the merits, it follows
that our direction to the district court must be to dismiss the cases
without prejudice.
[2][3] The Constitution limits the exercise of the judicial power to cases
and controversies. U.S. Const. art. III, s 2. An action that has become
moot or academic does not present a justiciable controversy within the case or
controversy clause. See Aetna Life Insurance Co. v. Haworth, 300 U.S. 227,
239-40, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937). The case must consist of a
present, live controversy in order to "avoid advisory opinions on abstract
propositions of law." Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201-02,
24 L.Ed.2d 214 (1969) (per curiam).
In addition to the constitutional limits on jurisdiction, the Supreme Court
has established a long-standing policy of refusing to decide constitutional
issues unless strictly necessary. Rescue Army v. Municipal Court, 331 U.S.
549, 568-72, 67 S.Ct. 1409, 1419-21, 91 L.Ed. 1666 (1947). "If there is one
doctrine more deeply rooted than any other in the process of constitutional
adjudication, it is that we ought not to pass on questions of
constitutionality ... unless such adjudication is unavoidable." Spector
Motor Service v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed.
101 (1944). This rule is basic to the federal system and the judicial function
within that structure. Rescue Army v. Municipal *605 Court, 331 U.S. at
570-71, 67 S.Ct. at 1420-21. [FN17] Ordinance No. 3091-83 was no longer in
force when the district court declared it unconstitutional. [FN18] "Where
by ... a subsequent law, the existing controversy has come to an end, the case
becomes moot and should be treated accordingly." United States v. Alaska
S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920). [FN19]
FN17. The rule is a corollary of the case and controversy requirement and
works to achieve the same purpose. Rescue Army v. Municipal Court, 331
U.S. at 570-71, 67 S.Ct. at 1420-21. The line between the two is often
very thin. Id.; see also 13A C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure s 3533.1, at 224-26 (2d ed. 1984).
FN18. The Church of Scientology argues in its brief that Ordinance No.
3479-84 would have expired by its own terms in 90 days if not reenacted and
that the old ordinance would then be revived. Brief for Appellee at 9-10,
21 n. 13. No citation is given to support this assertion, nor did the
district court discuss this issue of state law. We note, however, that
Ordinance No. 3479-84 provided for the repeal of inconsistent ordinances
and made no provision for bringing the prior ordinance back to life. There
is some doubt whether the City of Clearwater would have the power under
state law or its charter to enact such a measure.
FN19. See Hearn v. Hudson, 549 F.Supp. 949 (W.D.Va.1982) (repeal of
challenged ordinance rendered moot a prayer for declaration of
unconstitutionality); 6A J. Moore, J. Lucas & G. Grotheer, Moore's Federal
Practice P 57.13, at 57-127 (2d ed. 1984) ("statute passed during the
course of litigation may make unnecessary a determination of the former
controversy").
An actual controversy must exist at all stages of review. Preiser v.
Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975). It
is clear that the controversy over Ordinance No. 3091-83 retains no
vitality at this stage of review. Ordinance No. 3479-84 has been
permanently enacted and is the subject of vigorous litigation between the
same parties. Accordingly, it would now be appropriate to vacate the
judgments below with directions to dismiss the cases even if some
controversy had existed at the time of the district court decision. See
United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104,
106-07, 95 L.Ed. 36 (1950).
The district court justified its adjudication of the repealed ordinance on two
grounds. First, the court had to decide the question; otherwise, the City
could enact laws affecting the plaintiffs' constitutional rights and avoid an
adjudication of the validity of those laws by amending them prior to a
decision. In an appropriate case this concern might justify reaching a
decision on the validity of an ordinance no longer in force. [FN20] However,
in this instance there was no indication that the City was acting in a
manipulative fashion in order to prevent an adjudication or that any reasonable
likelihood existed that Ordinance No. 3091-83 would regain vitality. [FN21]
The proper course of action would have been to allow the plaintiffs to amend
their *606 complaints and proceed to litigate the ordinance then in effect.
[FN22]
FN20. See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 102
S.Ct. 1070, 71 L.Ed.2d 152 (1982), where the City of Mesquite repealed the
complained of portion of an ordinance after a district court declared it
unconstitutional, but the appeal was not rendered moot because the City had
announced an intention to reenact the objectionable language if the
judgment were vacated. Id. at 289 & n. 11, 102 S.Ct. at 1074-75 & n.
11.
FN21. The fact that the ordinance was repealed and a new one enacted
indicates that the City wished to regulate the subject matter in question,
but believed there were problems with the original ordinance. Under these
circumstances, it does not appear that any likelihood existed of a return
to the original ordinance.
Ample measures exist that would prevent a city from using last-minute
amendments to avoid a determination on the constitutionality of its
ordinances. For example, the rule that voluntary cessation of challenged
conduct will not moot a controversy if there is a reasonable expectation
that the alleged violation will recur might be applicable. See County
of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d
642 (1979). Review might also be available under the "capable of
repetition yet evading review" exception to the mootness doctrine. This
doctrine has two elements: "(1) the challenged action was in its duration
too short to be fully litigated prior to its cessation or expiration, and
(2) there was a reasonable expectation that the same complaining party
would be subjected to the same action again." Weinstein v. Bradford,
423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam).
The "capable of repetition" exception is not applicable to the present
situation because there is little likelihood that review will be evaded.
The City has enacted Ordinance No. 3479-84, regulating conduct similar to
that regulated by the former ordinance, and the new ordinance is subject to
review.
FN22. There are numerous cases illustrating the principle that where a
challenged ordinance is amended during litigation the appropriate course is
to proceed to a consideration of the amended ordinance. See, e.g.,
International Soc'y for Krishna Consciousness v. City of Houston, 689
F.2d 541, 543 (5th Cir. Unit A 1982); Milwaukee Mobilization for
Survival v. Milwaukee County Park Comm'n, 477 F.Supp. 1210, 1215
(E.D.Wis.1979).
The court's second ground for deciding the validity of the repealed ordinance
requires no discussion and no citation of authority. The fact that the court
was laboring under a heavy docket and desired to bring these cases to a quick
conclusion simply did not, and could not, justify the resolution of a
constitutional question in the absence of a live controversy.
B.
[4][5] In addition to presenting no live controversy over Ordinance No.
3091-83, the record contains no facts to support the district court's implied
finding that the plaintiffs had standing to challenge the constitutionality of
the ordinance. A threshold question in every federal case is whether the
plaintiff has made out a justiciable case or controversy within the meaning of
article III. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205,
45 L.Ed.2d 343 (1975). This requires that the minimum constitutional standing
requirements be demonstrated: actual or threatened injury, fairly traceable to
the challenged action, and redressable by a favorable decision. Valley
Forge Christian College v. Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).
The district court received no evidence, except a brief stipulation between
the Church of Scientology and the City, prior to entering its injunctive
orders. It merely entertained counsel's arguments on the legal question of the
ordinance's facial constitutionality. Contrary to Fed.R.Civ.P. 52(a), the
only facts the court recited in its orders were the enactment of the ordinance
and the municipal status of the City. [FN23] These facts and those contained
in the stipulation between the Church of Scientology and the City, as detailed
in Part I.A., supra, did not provide an adequate basis to justify a finding of
standing. There was no indication that the Church of Scientology operated in
Clearwater and would be affected or injured by the ordinance.
FN23. Fed.R.Civ.P. 52(a) requires the court to "find the facts
specially and state separately its conclusions of law" in all actions tried
without a jury. The only facts noted in the district court's memorandum
opinion and orders were that the City, a municipality of the State of
Florida, enacted the ordinance in question, the plaintiffs challenged the
ordinance, the City agreed not to enforce the ordinance pending the
litigation, and the ordinance was subsequently amended. These facts had
little, if any, bearing on the plaintiffs' standing to sue.
[6][7] It is true that the City informed the court that, except for the
Church of Scientology's first amendment freedom of religion claims, it would
not challenge the standing of the Church of Scientology to bring the action. A
plaintiff does not acquire standing merely because the defendant raises no
objection. Standing is a matter of the case-or-controversy requirement of
article III, and a district court is obliged to ensure that this
jurisdictional requirement is satisfied. Juidice v. Vail, 430 U.S. 327,
331, 97 S.Ct. 1211, 1215, 51 L.Ed.2d 376 (1977). In short, the district court
was not free to rely on the City's concession on standing. Further, the City's
concession excluded claims based on the freedom of religion clauses of the
first amendment, which were the heart of the Church of Scientology's challenge
to the ordinance and provided the basis for the district court's conclusion
that the ordinance was unconstitutional.
[8] Americans United and the City made no stipulation. The City did advise
the court that it would not question the Americans United plaintiffs' standing,
but in the same breath it insisted on reserving the right to challenge the
standing of any of such plaintiffs to prosecute any of their *607 claims.
This inconsistent statement, which went unresolved, accomplished nothing. As
to the plaintiffs in each of the cases before it, the court was obligated to
determine that they had adequate standing to present their constitutional
challenges. Bald assertions, or concessions, of counsel could not suffice.
Standing is a mixed question of fact and law. [FN24] To the extent that it is
a question of fact, the court must find the facts and recite them in a fashion
that will accommodate appellate review. See Fed.R.Civ.P. 52(a).
FN24. Because standing is jurisdictional, a reviewing court must satisfy
itself that the constitutional requirements are satisfied. Secretary of
State v. Joseph H. Munson Co., 467 U.S. 947, ----, 104 S.Ct. 2839, 2846
n. 4, 81 L.Ed.2d 786 (1984). This is a legal determination based on the
facts established by the record.
III.
[9] Americans United and the Church of Scientology were granted leave to
appeal, pursuant to 28 U.S.C. s 1292(b) (1982), [FN25] the interlocutory
orders of the district court declaring Ordinance No. 3479-84 facially
constitutional. We have concluded that their motions for leave to appeal these
interlocutory orders were improvidently granted and vacate the orders allowing
the appeals to proceed.
FN25. See supra note 12.
The district court, at its July 13 hearing on the facial validity of the new
ordinance, expressly declined to consider Americans United's motion for summary
judgment and the City's motions to dismiss each of the cases for failure to
state a claim. Instead, the court ruled on the constitutionality of the
ordinance in the abstract without any factual or evidentiary foundation. We
have determined that the question of the constitutionality of the ordinance is
not ripe for appellate review for several reasons.
There is no evidence in the record informing us whether the parties had
standing to bring their constitutional challenges. As stated in Part II.B.,
supra, it is not possible to determine whether any of the plaintiffs had
standing to challenge the original ordinance. The problem became exacerbated
when the plaintiffs attacked the new ordinance. Two new suits were instituted,
and the Church of Scientology's original complaint was amended, but no factual
findings have been made to support the new claims. The transcript of the July
13 hearing merely indicates that the City would not contest the plaintiffs'
standing at that time. As we have stated, supra, the court had a
constitutional obligation to ensure that the jurisdictional standing
requirements were met. See Juidice v. Vail, 430 U.S. at 331, 97 S.Ct. at
1215. [FN26]
FN26. We do not intimate any view on whether the plaintiffs can establish
standing to sue. We merely note that it is impossible to make the
determination on the basis of the record before us.
The statute permitting discretionary interlocutory review requires that the
district judge have issued "an order not otherwise appealable." 28 U.S.C. s
1292(b) (1982) (emphasis added). [FN27] Although the district court's decision
on the facial constitutionality of Ordinance No. 3479-84 was denominated an
order, we conclude that it was not an order within the meaning of the statute.
The ruling was a mere expression of the district court's view of the law
unassociated with the disposition of any claim. See Nickert v. Puget Sound
Tug & Barge Co., 480 F.2d 1039, 1041 (9th Cir.1973) (per *608 curiam);
Okolinsky v. Philadelphia, Bethlehem & New England Railroad, 282 F.2d 70,
71 (3d Cir.1960). The court answered a hypothetical, abstract question of
law. Its ruling had no concrete effect.
FN27. 28 U.S.C. s 1292(b) also requires us to assess whether "an
immediate appeal ... may materially advance the ultimate termination of the
litigation." We have considerable doubt whether an appeal in this instance
satisfies this standard. The plaintiffs have sought preliminary injunctive
relief alleging that the ordinance is facially unconstitutional and
unconstitutional as applied. They are entitled to prompt consideration of
their motions for preliminary relief. The district court has closed these
cases pending the plaintiffs' appeal of its interlocutory orders, depriving
the plaintiffs of the opportunity to put forth evidence and establish their
right to preliminary relief. The "ultimate termination" of this litigation
would have best been accomplished by proceeding to a determination of the
motions for a preliminary injunction. Appellate review of the grant or
denial of the injunction would then have been appropriate. See supra
note 8.
An appellate ruling on the facial validity of the new ordinance would be
purely advisory. Aside from the constitutional prohibition against the
rendering of advisory opinions, it would be unwise for us to establish part of
the law of the case at this time. Such a decision could present difficulties
for the district court and the parties beyond our ability to foresee as the
case proceeds to a determination on the merits. See Nickert v. Puget Sound
Tug & Barge Co., 480 F.2d at 1041; Molybdenum Corp. v. Kasey, 279 F.2d 216,
217 (9th Cir.1960) (per curiam). What we have said deserves special emphasis
where a constitutional question is at issue. The deeply rooted doctrine that
questions of constitutionality not be reached unless strictly necessary, see
Rescue Army v. Municipal Court, 331 U.S. at 568-72, 67 S.Ct. at 1419-21, is
particularly appropriate in this instance where no evidentiary or factual
background is presented, no claims have been disposed of, and a purely
hypothetical question is involved.
IV.
The Church of Scientology has appealed from the orders the district court
entered following its facial constitutionality ruling which enjoined the
enforcement of portions of Ordinance No. 3479-84 but declined to enjoin the
ordinance in its entirety. The Church of Scientology has also appealed from
the district court's denial of a preliminary injunction on its claim that the
ordinance was unconstitutional as applied. We affirm the district court's
denial of the applications for preliminary injunctive relief.
The elements a plaintiff must satisfy to obtain a preliminary injunction are
firmly established. The plaintiff must show that: (1) there is a substantial
likelihood that it will prevail on the merits at trial; (2) it will suffer
irreparable harm if injunctive relief is not granted; (3) the benefits of the
injunction will outweigh the harm it will cause the defendant; and (4) the
issuance of the injunction will not harm public interests. Callaway v.
Block, 763 F.2d 1283, 1287 (11th Cir.1985). A district court's order denying a
preliminary injunction will not be reversed absent an abuse of discretion.
Id.
[10] The record is devoid of any evidence indicating that this plaintiff
established a right to an injunction. [FN28] It presented no evidence and
established none of the criteria. The Church of Scientology would have us hold
that it was entitled to preliminary injunctive relief as a matter of law solely
on the basis of its naked allegations. [FN29] This of course we cannot do.
FN28. No findings of fact or conclusions of law accompanied the district
court's orders denying preliminary injunctive relief.
FN29. The Church of Scientology has not complained of the district court's
refusal to schedule a hearing on its application for a preliminary
injunction. We therefore need not address the issue.
V.
Several consolidated appeals are presented in this case. Because we have
determined that the controversy over Ordinance No. 3091-83 was moot when
decided, we order, in Nos. 84-3232 and 84-3236, that the injunctions be
VACATED and the cases dismissed without prejudice. We have found that leave to
appeal the interlocutory orders in Nos. 84-3574 and 84-3575 was
improvidently granted. We accordingly VACATE the orders granting such leave.
We AFFIRM the district court's denial of the Church of Scientology's motions
for a preliminary injunction in Nos. 84-3543, 84-3544, 84-3545, and 84-3546.