Opinion
Civil Action No. 1:CV-04-530.
May 13, 2005
MEMORANDUM AND ORDER
Before the Court is Defendant's motion for summary judgment (Doc. No. 23). The motion has been fully briefed and is ripe for disposition. For the reasons that follow, Defendant's motion will be granted in part and denied in part.
The following are undisputed facts. (Docs. No. 24, 25.) The Court notes that neither party filed a separate statement of undisputed material facts, in violation of Local Rule 56.1. This local rule states, in pertinent part:
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving part contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.
On October 16, 2003, Plaintiff Keith Dobson filed an application for a parade permit pursuant to Defendant's Ordnance No. 03-17 ("Old Ordinance"). Defendant granted Plaintiff Dobson a permit and on December 6, 2003, the planned rally proceeded as scheduled on both public and private property. Defendant provided traffic control and security.
On February 10, 2004, Defendant sent an invoice to Plaintiff Dobson in the amount of $3,064.74 for traffic control costs associated with the December rally. Plaintiffs initiated the instant action on March 11, 2004, seeking, inter alia, a declaration that the Old Ordinance violated the United States Constitution and injunctive relief preventing Defendant from enforcing the ordinance or collecting monies owed pursuant thereto. (Doc. No. 1.) On March 17, 2004, this Court issued a temporary restraining order enjoining enforcement of the "police and public works cost assessment portion of Springettsbury Township Ordinance 03-17, section 7, part B" for "ten (10) days or until this Court issues an Order on the motion for a preliminary injunction, as provided for in Federal Rule of Civil Procedure 65(b)." (Doc. No. 11.) On March 19, 2004, Defendant agreed to suspend enforcement of Springettsbury Ordinance 03-17, section 7, part B., relating to police and public works costs pending further Order of the Court. (Doc. No. 14.)
On September 23, 2004, Defendant adopted Parade and Public Assembly Ordinance No. 04-10 ("New Ordinance"), which repealed and replaced the Old Ordinance. On November 18, 2004, Defendant filed the instant motion for summary judgment.
II. Standard of Review
Summary judgment is proper where "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." Fed.R.Civ.P. 56; White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). A factual dispute is material if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 249. The evidence presented must be viewed in the light most favorable to the non-moving party. Id. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must, as a matter of law, prevail over the other." Id.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, the non-moving party may not simply sit back and rest on the allegations in the complaint. Instead, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial."Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The evidence must be viewed in the light most favorable to the non-movant. See Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322.
III. Discussion
Article III, section 2 of the United States Constitution permits federal courts to exercise jurisdiction only over "cases and controversies". If a claim no longer presents a live case or controversy, the claim is moot and federal courts lack jurisdiction to hear it. Allen v. Wright, 468 U.S. 737, 750 (1984); Nextel Partners, Inc. v. Kingston Township, 286 F.3d 687, 693 (3d Cir. 2002); Nextel West Corp. v. Unity Township, 282 F.3d 257, 261 (3d Cir. 2002). "If the claim is based on a statute or ordinance that is amended after the litigation has begun, the amendment may or may not moot the claim, depending on the impact of the amendment." Unity Township, 286 F.3d at 261-62. "[A] request for a declaratory judgment that a statutory provision is invalid is moot if the provision has been substantially amended or repealed." Kingston, 286 F.3d at 693.
On November 18, 2004, Defendant filed the instant motion for summary judgment, arguing that, because the Old Ordinance was repealed, Plaintiff's claims have been rendered moot. (Doc. No. 24.) Further, Defendant vows not to pursue collection of the invoice issued to Plaintiff Dobson and reimburse Plaintiff reasonable attorney's fees occasioned by this matter. (Id.)
In their Complaint, Plaintiffs claim that the Old Ordinance was unconstitutional because it was facially vague and overbroad, and because it imposed an "unnecessary and unreasonable burden on people who want to express their rights in traditional public forums." (Doc. No. 1, ¶ 50-51.) In support of this claim, Plaintiffs point to the Township officials' "unfettered discretion" to determine costs, the ordinance's indemnification requirement, the ordinance's thirty-day advance notice requirement, and the Township officials' discretion to deny a permit. (Docs. No. 1, ¶¶ 45-50; 25, ¶ 14.) The Court will address each claim in turn.
A. Costs
Plaintiffs claim that, under the Old Ordinance, Township officials had unconstitutionally overbroad discretion in deciding whether to impose costs upon permit holders. (Doc. No. 1, ¶¶ 45-46.) The Old Ordinance stated that "[s]hould it be necessary for the Township for any reason to expend its own funds or manpower or use its equipment to ensure the orderly conduct of the parade or public assembly or disassemble or remove debris occasioned by the parade or public assembly," then the person sponsoring the event shall "reimburse the Township the reasonable cost of same upon presentment of the Township's statement." (Doc. No. 1, Exhibit C, § 7(B).) The language of the New Ordinance is almost identical, stating "[s]hould it be necessary for the Township for any reason to expend its own funds or manpower or use its equipment to disassemble or remove debris occasioned by the parade or public assembly," then the person sponsoring the event shall "reimburse the Township for said expenditures." (Doc. No. 23, Exhibit A, § 7(A).) The New Ordinance removes the ability of township officials to charge rally organizers for police protection, which were the costs Plaintiff Dobson was assessed in the instant action. Moreover, Defendant has agreed not to pursue the fees assessed Plaintiff Dobson under the Old Ordinance. (Doc. No. 24.)
Plaintiffs complaint focuses on Defendant's "unfettered discretion to determine what to charge or even whether to charge anything for any type of Township costs. . . ." (Doc. No. 1.) Although the New Ordinance removes liability for police costs, parties may still face liability for clean up costs "occasioned by the parade." (Doc. No. 23, Exhibit A, § 7(A)). Furthermore, neither ordinance requires "an explanation of the decisions to charge fees nor provide for administrative or judicial review of a fee assessment." (Complaint, Doc. No. 1.) Thus, the gravamen of Plaintiffs' claim remains.
Moreover, although Plaintiff Dobson was never charged with trash cleanup costs from the December 6th rally, he retains standing to seek injunctive relief. In the case of overbreadth challenges, standing arises "not because [the plaintiff's] own rights of free expression are violated, but because of a judicial prediction or assumption that the [challenged statute's] very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); Peachlum v. City of York, 333 F.3d 429, 438 (3d Cir. 2003). An individual against whom no enforcement action has been taken can still challenge a regulation "because [that regulation] also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Waterman v. Farmer, 183 F.3d 208, 212 (3d Cir. 1999) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985)). Therefore, Plaintiffs' claims have not been rendered moot and summary judgment is inappropriate at this time.
B. Indemnification
Plaintiffs allege that the indemnity requirement of the Old Ordinance was also unconstitutional. (Doc. No. 1, ¶¶ 47-48.) The Old Ordinance required, inter alia, that "[t]he person sponsoring the parade or public assembly" must "execute an agreement to indemnify and hold the Township harmless from any and all claims that may be made or brought against the Township for loss, injury, or damage to persons or property arising out of or in connection with the parade or public assembly." (Doc. No. 1, Exhibit C, § 7(A).) This provision has been completely removed from the New Ordinance. The removal of this provision sufficiently provides Plaintiffs the declaratory and injunctive relief that they sought regarding the indemnification prerequisite. Accordingly, this claim is moot and will be dismissed.
C. Advanced Notice
Plaintiffs also claim that the advanced notice requirement under the Old Ordinance did not allow for prompt and spontaneous demonstrations, in violation of their constitutional rights. (Doc. No. 1, ¶¶ 49-50.) The Old Ordinance required a blanket thirty-days advanced notice for all parades and public assemblies, regardless of size or location. (Doc. No. 1, Exhibit C, § 4.) In contrast, the New Ordinance has a staggered advance notice requirement based on the projected size of the assembly and distinguishes between different types of requests. (Doc. No. 23, Exhibit A, § 4.) The New Ordinance provides that groups of 20 to 50 individuals who wish to march on a sidewalk need only provide three business days advance notice, whereas a group of more than 250 who wish to march on a public road must submit an application fifteen days in advance. (Id.) Groups of less than 20 people need not seek a permit at all. (Id.)
However, the record has not been developed sufficiently to allow the Court to determine whether the length of the New Ordinance's advanced notice requirement, or its existence at all, meets constitutional scrutiny. The substance and language of the ordinance has not been substantially amended as to moot Plaintiff's claim. Therefore, summary judgment regarding this claim will be denied at this time.
D. Discretion to Deny
Finally, Plaintiffs claim that the Old Ordinance gave Township officials overly broad discretion in denying permits and provided no mechanism for review. (Doc. No. 25.) According to both ordinances, the Township Manager must issue a permit for a parade unless he finds or does not find certain enumerated factors. (Docs. No. 1, Exhibit C, ¶ 6; 23, Exhibit A, ¶ 6.) These factors include, inter alia, finding that "the parade or public assembly will substantially interfere with the safe and orderly movement of traffic . . ." or that "the parade or public assembly will unduly interfere with the movement of firefighting equipment en route to a fire. . . ." (Id.)
Although Plaintiffs point to certain provisions of the New Ordinance as "constitutionally problematic" in their brief in opposition to Defendant's motion for summary judgment (Doc. No. 225, ¶ 14), Plaintiffs' Complaint does not specifically address this issue. Instead, Plaintiffs claim only that the Old Ordinance is generally vague and overbroad. (Doc. No. 1, ¶ 50.) Thus, the gravamen of the claim does not lie with the individual factors, but rather the Township official's alleged broad discretion in deciding when the factors are triggered and the lack of a review process of this decision. Although some of the factors may have been amended, the core of Plaintiff's complaint remains. Accordingly, this claim is not moot and Defendant's motion for summary judgment regarding this claim will be denied. IV. Order AND NOW, this 13th day of May, 2005, upon consideration of the Defendant's motion for summary judgment (Doc. No. 23) and all responsive papers thereto, IT IS HEREBY ORDERED THAT Defendant's motion is GRANTED in part and DENIED in part. With regard to Plaintiffs' indemnification claim, Defendant's motion is granted. Plaintiffs' indemnification claim is DISMISSED as moot. In all other respects, Plaintiffs' motion is denied. Further, the parties' joint motion for extension of time to enlarge deadlines (Doc. No. 27) is GRANTED. IT IS FURTHER ORDERED THAT the deadlines set forth in the Case Management Order shall be extended by three months. The Clerk of Court is directed to issue new case management deadlines consistent with this Order.
Although Plaintiff Dobson actually received a parade license upon request, Plaintiffs have standing to prosecute this claim for the same reasons as discussed above. See supra Section III(A); Broadrick, 413 U.S. at 612.