Opinion
Civil Action No. 3:02-CIV-1998-D
September 19, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Zen Music Festivals, L.L.C.'s ("Zen's") emergency application for preliminary injunction, which seeks to preclude defendants from enforcing the Texas Mass. Gatherings Act ("TMGA"), Tex. Health Safety Code Ann. §§ 751.001-751.013 (Vernon 1992 Supp. 2002), as to Zen's planned September 21, 2002 music concert, principally presents the question whether Zen has shown a substantial likelihood that the TMGA is facially invalid under the First Amendment. For the reasons that follow, the court holds that Zen has done so in part. The court therefore preliminarily enjoins defendants from enforcing the TMGA permit requirement for this music concert.
The court sets out in this memorandum opinion and order its findings of fact and conclusions of law. See Fed.R.Civ.P. 52(a).
I
Zen is in the business of promoting a series of annual music festivals in the state of Texas. It intends to hold a music concert on September 21, 2002 on private property — the Beaumont Ranch — located in Ellis County. "The concert will feature electronic music and commentary on the world order espoused by proponents of electronica." P. Br. at 1. The TMGA requires a permit for a "person" such as Zen to hold a "mass gathering." TMGA § 751.002(2) (defining "person"); § 751.003 (prescribing permit requirement). A "mass gathering "is "a gathering that is held outside the limits of a municipality and that attracts or is expected to attract more than 5, 000 persons who will remain at the meeting location for more than five continuous hours." Id § 751.002(1). Zen contends that, although it did not initially anticipate that more than 5, 000 people would attend its September 21, 2002 festival, at least by August 28, 2002 its expectations changed, and it applied for a permit from defendant Al Cornelius ("Judge Cornelius"), the County Judge of Ehis County. The TMGA provides that Zen must apply to the county judge of the county in which the mass gathering is to be held. Id § 751.004.
TMGA § 751.0055(a) provides that the county judge may delegate to another county officer his authority to hear permit applications and revoke permits. For ease of reference, and because the county judge made the decision in the present case, the court will refer throughout this opinion to the county judge as the decisionmaker under the statute.
Judge Cornelius held a hearing and on September 9, 2002 denied the permit. Zen did not, as permitted by statute, appeal the decision to the state district court. Instead, it filed the instant action on September 13, 2002. It sues defendants Ray Stewart, in his official capacity as Sheriff of Ehis County, and Judge Cornelius, in his official capacity as Ellis County Administrator, under 42 U.S.C. § 1983. Zen seeks a declaratory judgment that the TMGA is facially invalid under the First Amendment, and it requests a permanent injunction precluding defendants from enforcing the TMGA. On September 16, 2002 Zen filed the instant emergency application for preliminary injunction, in which it asks the court to enjoin defendants from enforcing the TMGA. The court granted the Attorney General of Texas leave to interfere on September 18, 2002 to defend the constitutionality of the TMGA. See 28 U.S.C. § 2403 (b). The court accelerated the briefing on the emergency Application and heard oral argument on September 18, 2002.
Zen's September 18, 2002 motion to strike portions of brief of defendants Cornelius and Stewart is denied as moot.
II
A preliminary injunction is an extraordinary remedy that should be granted only when the movant clearly demonstrates: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) that the threatened injury outweighs any harm that may result from the injunction to the nonmovant; and (4) that granting the injunction will not disserve the public interest. See Jones v. Bush, 122 F. Supp.2d 713, 718 (N.D. Tex.) (Fitzwater, J.) (citing Rusciuc v. Merrill Lynch, Pierce, Fenner Smith, Inc., 777 F. Supp. 1349, 1353 (ND. Tex.) (Fitzwater, J.), aff'd, 948 F.2d 1286 (5th Cir. 1991) (per curiam) (table)), aff'd, 244 F.3d 134 (5th Cir. 2000) (per curiam) (table), cert. denied, 531 U.S. 1062 (2001). "A preliminary injunction "is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion. Id (quoting White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989); Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)).III A
The music festival that Zen seeks to promote and hold on September 21, 2002 is protected expression under the First Amendment. Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) ("Music, as a form of expression and communication, is protected under the First Amendment."). The TMGA is unquestionably a facially content-neutral permit scheme. Even content-neutral time, place, and manner regulations must contain adequate standards to guide the decisionmaker's decision. "We have thus required that a time, place, and manner regulation contain adequate standards to guide the official's decision and render it subject to effective judicial review." Thomas v. Chi. Park Dist., 534 U.S. 316, 122 S.Ct. 775, 780 (2002); accord New England Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 21 (1st Cir. 2002). Zen may bring a facial challenge to the scheme on the ground that the standards are inadequate and give the decisionmaker such substantial power that he can discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers. City ofLakewood V. Plain Dealer Pub. Co., 486 U.S. 750, 759 (1988) ("Therefore, a facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers."); see Thomas, 122 S.Ct. at 780 (allowing facial challenge to content-neutral time, place, and manner park-use permit ordinance).
B
The court holds that the TMGA is constitutionally infirm facially, at least in the respect that, under § 751.006(a), the county judge need not hold a hearing on a promoter's application until the tenth day before the date on which a mass gathering is scheduled to begin, and, under § 751.007(a), the county judge need only render a decision at some unspecified time "[a]fter the completion of the hearing." This unquestionably permits the decisionmaker to discriminate based on viewpoint. An analysis of the statute demonstrates how.
TMGA § 751.006(a) provides, in relevant part, that, "[n]ot later than the 10th day before the date on which a mass gathering will begin, the county judge shall hold a hearing on the application." By definition, a mass gathering is a relatively large event. Promoting such a gathering can often be expected to require substantial advance planning and extensive pre-event arrangements. Yet under the statute, a promoter cannot organize, manage, or finance, much less hold, a mass gathering without the required permit. The TMGA requires a permit before a promoter can "promote" such a gathering, and the statutory definition of "promote" broadly includes organizing, managing, and financing a gathering as well as holding one. See TMGA § 751.003 ("A person may not promote a mass gathering without a permit issued under this chapter."); § 751.002 (3) (""Promote' includes organize, manage, finance, or hold."). Even if a promoter applies for a permit well in advance of a gathering — even, for instance, one year in advance — because substantial lead time is necessary, the county judge is under no obligation to hold a hearing on the application until ten days before the event is scheduled to begin.
Section 751.004(a) does appear to contemplate, however, that a promoter is allowed to undertake some advance preparations for the gathering, because it requires a permit applicant to describe steps and preparations taken for matters such as compliance with minimum sanitation and health standards, traffic control, and adequate medical and nursing care. Even if the terms of the TMGA could be harmonized to allow some pre-permit organizational, management, or financial activities, the court's essential reasoning would not change.
The county judge could delay a hearing until literally the last minute for little or no reason. Worse, he could do so merely because he disagreed with the viewpoint of the contemplated speech. And the TMGA even provides a guise for such delay, since it empowers the county judge "to conduct any additional investigation [of the permit application] that the judge considers necessary." TMGA § 751.005(e). Delay in convening a hearing could easily chill promoters from organizing, managing, and financing a gathering. Even a well-intentioned promoter who wanted to ensure that his event complied with the TMGA could find it difficult to secure sponsorships, performer and vendor contracts, and necessary health and public safety services if his permit were not reviewed until, at the earliest, ten days before the event. Due to the denial of a reasonably prompt hearing on his permit application, a promoter could be effectively prevented from complying with one or more of the grounds that, if not satisfied, would allow the county judge to deny the application. See TMGA § 751 .007(b)(1)-(9). Thus a county judge can covertly discriminate on the basis of viewpoint by waiting until ten days before a planned event to grant or deny a permit.
Additionally, where the county judge has delegated his authority to approve permits to another county official, § 75 1.0055(c) expressly empowers him to "withdraw the authority delegated in relation to an application and the county judge may hear the application." Id (emphasis added). So if a county judge becomes displeased with the pace with which the designated county official has decided to convene a hearing and act on a permit application, the county judge is authorized to withdraw the authority as to that specific application.
The court suggests no adverse view concerning the specific conduct of Judge Cornelius — who in fact acted on Zen's application with twelve days of the date it was filed — or the possible actions of any particular county judge who decides whether to grant a permit under the TMGA. In the context of a facial challenge, it is the structural possibility for such abuse, rather than the specific conduct of the decisionmaker, that controls. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 133 n. 10 (1992); Lakewood, 486 U.S. at 770.
The TMGA should be contrasted, in this respect, with the ordinance that the Supreme Court addressed in Thomas, which required a person to obtain a permit in order to "conduct a public assembly, parade, picnic, or other event involving more than fifty individuals," or engage in an activity such as "creat[ing] or emit[ting] any Amplified Sound." Thomas, 122 S.Ct. at 777. That ordinance required the Park District to decide whether to grant or deny an application within 14 days unless, by written notice to the applicant, it extended the period an additional 14 days. Id. The decisionmaking authority was thus required to "process applications within 28 days[.]" Id. at 781. "An unsuccessful applicant ha[d] seven days to file a written appeal to the General Superintendent of the Park District, who [was required to] act on the appeal within seven days." Id at 778. Judicial review was available if the General Superintendent affirmed the denial. Id Thus, under the ordinance at issue in Thomas, an applicant who sought to make arrangements for a gathering of more than 50 people did not face the prospect of having to wait until a date near the event to learn whether the permit would be granted and then begin promoting the gathering.
Moreover, the TMGA does not require the county judge to rule on the application at any particular time after the hearing. TMGA § 751.007 (a) states only that the judge shall either grant or deny the permit "[a]fter the completion of the hearing." Under the literal terms of the statute, a county judge could deny a permit application at any time until the gathering is scheduled to take place. Thus the hypothetical applicant referred to above, who applied for a permit one year in advance, but of whose viewpoint the county judge disapproved, could face the prospect of obtaining a hearing on the application a mere ten days before the gathering and of not receiving a ruling until the day before the event was scheduled to occur. This possibility stands as a clear impediment to speech that is intended for a mass gathering audience.
The TMGA permit regimen "suffer[s] from [a] more covert form[I of discrimination that may result when arbitrary discretion is vested in some governmental authority." Heffron v. Int'l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981).
Invariably . . . [systems are] condemn[ed] . . . in which the exercise of [licensing] authority [is] not bounded by precise and clear standards. The reasoning [being], simply, that the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use. Our distaste for censorship — reflecting the natural distaste of a free people — is deep-written in our law.
Southeastern Promotions Ltd, v. Conrad, 420 U.S. 546, 553 (1975); see also Thomas, 122 S.Ct. at 780 ("Where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based upon its content."); Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992) ("If the permit scheme "involves appraisal of facts, the exercise of judgment, and the formation of an opinion, ' by the licensing authority, "the danger of censorship and of abridgment of our precious First Amendment freedoms is too great' to be permitted.") (citations omitted). Thus a facially content-neutral statute like the TMGA that, through insufficient procedural requirements, effectively allows officials to base their licensing decisions upon the content of the speech instead of content-neutral time, place, or manner regulations is invalid under the First Amendment.
C.
The court must next address whether the TMGA provisos in question are severable. If any provision of a statute that does not contain a severability provision is declared unconstitutional, Texas law provides that the invalidity "does not affect other provisions or applications of the statute that can be given effect without the invalid provision or application, and to this end the provisions of the statute are severable." See Tex. Gov't Code Ann. § 311.032 (Vernon 2001); see also Quick v. City of Austin, 7 S.W.3d 109, 115 (Tex. 1999) (on rehearing) ("[I]f any provision of a statute is held to be invalid, the invalidity does not affect other provisions that can properly be given effect in the absence of the invalid provisions."). The court holds that, to the extent necessary to avoid granting preliminary injunctive relief, the provisions in question cannot be severed in a manner that will return the statute to constitutional compliance. If the court severs §§ 751.006(a) and 751.007(a) from the balance of the statute, no time limits for holding a hearing and rendering a decision will remain. In other words, the statute will be more infirm than it now is. Other provisions, however, can be severed. See infra § 111(D) (addressing TMGA § 751.012).
D
In its emergency application, Zen asks the court to enter a preliminary injunction "prohibiting the enforcement of the Act during the pendency of this lawsuit." P. App. at 1. To the extent Zen seeks broader relief than the court has granted, it denies the application in part. Zen has not demonstrated how the TMGA is unconstitutional, for example, insofar as it allows the county health authority, county fire marshal, or county sheriff to inspect a mass gathering to ensure compliance with health, sanitation, public fire safety, and public order and to order corrections. See TMGA § 751 .012. The effect of the court's preliminary injunction is to permit Zen to hold the music festival without obtaining the permit required by the TMGA, not to circumvent public health, sanitation, and safety laws that promote the public interest and that do not chill protected expression. See Tex. Dep't of Health, 25 Tex. Admin. Code §§ 265.1-265.3 (West July 31, 2002) (Health and Sanitation for Mass. Gatherings); Tex. Dep't of Pub. Safety, 37 Tex. Admin. Code §§ 1.161-1.169 (West July 31, 2002) (Public Safety at Mass. Gatherings). Therefore, nothing in the court's preliminary injunction precludes any government authority from enforcing laws other than the permit requirement of the TMGA as to the September 21, 2002 Zen music festival at issue.
Section 751.012 provides:
(a) The county health authority may inspect a mass gathering during the mass gathering to ensure that the minimum standards of health and sanitation prescribed by state and local laws, rules, and orders are being maintained. If the county health authority determines a violation of the minimum standards is occurring, the health authority may order the promoter of the mass gathering to correct the violation.
(b) The county fire marshal or the person designated under Section 751.005(c) may inspect a mass gathering during the mass gathering to ensure that the minimum standards for ensuring public fire safety and order as prescribed by state and local laws, rules, and orders are being maintained. If the marshal or commissioners court designee determines a violation of the minimum standards is occurring, the marshal or designee may order the promoter of the mass gathering to correct the violation.
(c) The sheriff may inspect a mass gathering during the mass gathering to ensure that the minimum standards for ensuring public safety and order prescribed by state and local laws, rules, and orders are being maintained. If the sheriff determines a violation of the minimum standards is occurring, the sheriff may order the promoter of the mass gathering to correct the violation.
(d) A promoter who fails to comply with an order issued under this section commits an offense. An offense under this section is a Class C misdemeanor.
In fact, Zen's counsel appeared to acknowledge during oral argument that the enactment of these regulations provided appropriate guidance for a county judge's assessment of some of the factors in TMGA § 751 .007 (b)(1)-(9) that permit denial of a permit application.
IV
Zen must also establish a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury outweighs any harm that may result from the injunction to defendants; and that granting the injunction will not disserve the public interest. These requirements are easily met in the present case, where Zen has demonstrated a substantial likelihood that the TMGA is facially unconstitutional. Cf. Ingebretsen ex rel Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.2d 274, 280 (5th Cir. 1996).
Zen's emergency application for preliminary injunction is granted in part and denied in part, and a preliminary injunction is filed contemporaneously with the entry of this memorandum opinion and order.
SO ORDERED.