Opinion
Cause No. IP01-1518-C-M/S
December 26, 2002
Sean C Lemieux Indiana Civil Liberties Union, Indianapolis, IN.
John A Kitley Jr, Beech Grove, IN.
Thomas E Wheeler II Locke Reynolds, Indianapolis, IN.
ORDER ON MOTION TO RECONSIDER
This matter comes before the Court on a motion to reconsider, brought by the Defendants, the Franklin Township Community School Corporation and Principal Kevin Koers ("Koers") of Franklin Central High School (collectively referred to as "FCHS"). On October 1, 2001, the Plaintiffs, Amy Obermeyer ("A. Obermeyer") and the Gay/Straight Alliance (collectively referred to as the "GSA"), filed a Complaint for Declaratory and Injunctive Relief in this Court, seeking to compel FCHS to recognize the GSA's existence as a school club, entitled to meet on the same basis as other school clubs during the school day. The GSA argued that the FCHS's refusal to recognize it as an official student club violated the group's free speech and free association rights, as well as the specific requirements of the Equal Access Act ("EAA").
In March, 2002, the GSA filed a motion for summary judgment. FCHS responded with its own cross-motion for summary judgment. On August 29, 2002, this Court entered judgment in favor of the GSA, finding that FCHS's denial of recognition to the GSA constituted a violation of the EAA.
The Court ordered FCHS "to immediately instate the GSA as an offical school club for the coming school year, 2002-2003, with all the rights and privileges of any other officially approved club. . . ."
FCHS now points out that A. Obermeyer graduated on May 30, 2002, so that she no longer has an interest in forming a GSA club. FCHS further argues: "it does not appear that the GSA currently exists independent of her involvement." D. Brief at 2. Therefore, FCHS now requests this Court to declare its original Order "moot."
For the reasons discussed below, the Court finds that its prior order has not been made moot by A. Obermeyer's graduation. As a result, the Court DENIES FCHS's motion to reconsider.
I. STANDARD OF REVIEW
Motions to reconsider serve a limited function, to be used "where `the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension[.]'" Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (quoting Above the Belt, Inc. v Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va. 1983)). Accord Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996); Matter of Prince, 85 F.3d 314, 324 (7th Cir.), cert. denied, 519 U.S. 1040 (1996). The parties may not introduce evidence previously available but unused in the prior proceeding or tender new legal theories. See Caisse
Nationale de Credit Agricole, 90 F.3d at 1269; Matter of Prince, 85 F.3d at 324; Bally Export Corp. v. Balicar Ltd., 804 F.2d 398, 404 (7th Cir. 1986). However, new evidence that was unavailable prior to a hearing on the previous motion may be considered. See Matter of Prince, 85 F.3d at 324; Bally Export, 804 F.3d at 404; Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985).
II. DISCUSSION
The Court recognizes that, given the timing of its decision to grant injunctive relief to the GSA, that decision did not have any practical impact upon the rights of A. Obermeyer. By the time she would have been affected by the decision, she had already graduated. See Stotts v. Community Unit School District No. 1, 230 F.3d 989, 991 (7th Cir. 2000). Thus, if A. Obermeyer had been the only plaintiff in this case, the Court might have found FCHS's argument persuasive that there was no longer a live controversy by the time of the Court's Order. Id. There is an exception to the mootness doctrine for cases "capable of repetition yet evading review," but it is doubtful that A. Obermeyer's personal claim would meet the requirements for this exception. Murphy, 455 U.S. 478, 482 (1982).
However, A. Obermeyer was not the only plaintiff in this case. Therefore, as FCHS rightly understands, its argument cannot succeed unless FCHS can further demonstrate that the GSA did not properly belong in this lawsuit.
To that end, FCHS argues that the GSA (a) did not really exist and (b) did not have standing to sue at the time this Court handed down its Order on August 29, 2002. Thus, FCHS appears to be raising a mixed question of fact and law. Did GSA actually exist? And, if so, was GSA the type of organization that has the legal standing necessary to sue FCHS?
Rule 17(b) of the Federal Rules of Civil Procedure provides that an "unincorporated association, which has no capacity by the law of [any] state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States." This rule was invoked by the GSA at the time that it sued.
But, FCHS challenges the applicability of this Rule on two fronts. First, FCHS points out that:
"[r]ule 17(b) is directed to the capacity to sue or be sued of a pre-existing legal entity, not to whether that entity exists in the first place." Defendants' Motion to Reconsider and Suggestion of Mootness ("D. Brief") at 6. Second, FCHS cites an old Indiana Appellate Court case for the proposition that, according to Indiana law, a group such as GSA, even if it does exist, would not be permitted to bring suit "in the absence of an enabling statute defining the rights and liabilities of the members." All Members of the A.F.L.-C.I.O. Building Trades Council of Madison County v. Yost Construction Co., Inc., 246 N.E.2d 771, 773 (Ind.App. 1969).
It is doubtful that this case is still good law. As the GSA pointed out in its own brief, Plaintiffs' Response to Defendants' Motion to Reconsider and Suggestion of Mootness ("P. Brief") at 4, the Indiana Supreme Court has more recently defined an unincorporated association as "a voluntary group of persons which, without a charter, was formed by mutual consent for the purpose of promoting a common enterprise or prosecuting a common objective." Hanson v. St. Luke's United Methodist Church, 704 N.E.2d 1020, 1022 n. 5 (Ind. 1998). GSA, if it exists, was clearly formed for the purpose of pursuing a common objective. And, according to Indiana law, an unincorporated association may bring a declaratory judgment action and may sue or be sued in its common name. Ind. Code §§ 34-14-1-1, 34-14-1-13; Ind. Trial Rule 17(B), (E).
Moreover, even if there were a question of law here, that question existed at the time of this Court's original consideration of the parties' arguments. FCHS cannot raise this question for the first time, now, during a motion to reconsider. Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).
As for the factual question, FCHS makes two arguments. First, FCHS argues that the GSA is "nothing more than a simple list that [A.] Obermeyer wrote down on a piece of paper of `her supporters.'" D. Brief at 10. Second, FCHS argues that "[t]he most eloquent evidence that the GSA was nothing more than [A.] Obermeyer's alter ego, lacking separate legal existence, is the fact that" GSA did not fill out a club form for the school year 2002-2003, after A. Obermeyer graduated.
Just as with FCHS's legal argument, the Court again finds that it is too late for FCHS to contest a factual question that it could have contested during the original briefing of this case. If A.
Obermeyer's claim that she had a list of nineteen students interested in the GSA was insufficient to establish the existence of the GSA as an independent entity when this case was first brought before this Court, FCHS should have made that argument. The only basis for raising the argument for the first time during a motion to reconsider is if the evidence underlying the argument was not available to FCHS at the time of the original hearings. Matter of Prince, 85 F.3d 314, 324 (7th Cir.), cert. denied, 519 U.S. 1040 (1996). FCHS has made no such argument to the Court.
Moreover, Rule 9(a) provides:
When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued . . . , the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.
Thus, if FCHS truly believed that, for purposes of forming a club during the 2001-2002 school year, GSA did not really exist other than as an alter ego for A. Obermeyer, then the appropriate place to raise this issue would have been in FCHS's pleadings. Therefore, the Court will not consider at this late date the factual question of whether the GSA actually existed during the 2001-2002 school year.
That leaves only FCHS's argument that the GSA does not now exist, as evidenced by the fact that GSA did not fill out a club form or make an attempt to be represented at the school's annual club fair in September of 2002. In making this argument, FCHS implies that the only logical explanation must be that the GSA no longer exists and no longer has any interest in meeting.
That argument is belied by an affidavit provided by David Obermeyer ("D. Obermeyer") in opposition to this motion to reconsider. P. Brief, tab A. D. Obermeyer attests that he is currently a sophomore at FCHS, that he is "one of the original founding members of the [GSA]," and that the GSA "currently has at least six other members who want to attend and will attend meetings if the club is permitted to meet during the designated club period." Id. D. Obermeyer further attests that he did not become aware until September 6, 2002, that the Court had made a decision in this case to permit the GSA to meet at FCHS.
With this in mind, the Court can conceive of at least two reasons why the GSA might not have applied for club status at the beginning of the 2002-2003 school year. The first is that the GSA believed that FCHS had already denied them the right to meet as a student club. Therefore, the GSA had no reason to believe that its club application would be successful, until it learned of the Court's Order. By that time, it was too late to respond to the school's request for club applications for the 2002-2003 school year. The second is that the GSA may have had difficulty finding a faculty sponsor for the 2002-2003 year. Neither of these reasons suggest that the GSA had ceased to exist prior to the Court's issuing of its Order on August 29, 2002. To the contrary, the uncontradicted testimony of D. Obermeyer shows that the GSA still exists and still has legal standing to sue and be sued. Therefore, this case is not moot.
However, the Court wishes to clarify that it is not now saying that the GSA has an automatic right to meet during the club period, just because it does still have legal standing. In the Court's original Order, the Court directed that the GSA should be "instated" with "all the rights and privileges of any other officially approved club including, but not limited to:
a) the right to participate in Club Fair and recruit new members;
b) the right to meet during the designated Thursday morning Club Period; and
c) the right to be represented like any other club in the student yearbook.
Order at 38. The Court further cautioned FCHS "against imposing any other obstacles to the GSA's right to participate in the student club forum that did not exist at the time of the GSA's original application for official student club status in August of 2001." Id.
But the Court did not say that GSA was entitled to rights that other clubs would not have had.
In particular, GSA is not entitled to form an officially approved club without first obtaining a faculty sponsor and then filling out the simple form that was required of all other clubs, listing the name and purpose of the club, the faculty sponsor, and the time when the club would meet.
Nothing in this Opinion changes the Court's prior Order. The Court finds that the evidence does not establish FCHS's claim that the GSA has ceased to exist. FCHS is still required to recognize the GSA as an official student club, but only if the GSA follows the same procedures expected of other clubs, which entails obtaining a faculty sponsor and filling out the necessary paperwork.
With that in mind, FCHS's motion to reconsider is DENIED.