Opinion
Civil Action No. 3:02-CV-1998-D.
July 23, 2004
MEMORANDUM OPINION AND ORDER
This suit challenging two provisions of the Texas Mass Gatherings Act ("TMGA"), Tex. Health Safety Code Ann. §§ 751.001-751.013 (Vernon 2003), presents the questions whether the statute is a content-neutral time, place, and manner regulation and whether it is facially unconstitutional under the First Amendment. The court holds that the TMGA is a content-neutral time, place, and manner regulatory scheme and that the two provisions at issue do not render the Act facially unconstitutional.
I
Plaintiff Zen Music Festivals, L.L.C. ("Zen") applied under the TMGA for a permit to hold an outdoor music festival on private property — the Beaumont Ranch — located in Ellis County, Texas. Section 751.003 of the TMGA requires that a person who intends to promote a "mass gathering" obtain a permit. The term "person" includes corporations and partnerships. See id. § 751.002 (2). "`Mass gathering' means 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). Promoting a mass gathering without a permit is a misdemeanor, punishable by a fine or confinement in the county jail. Id. § 751.011(a) and (b).
The TMGA requires that, "[a]t least 45 days before the date on which a mass gathering will be held, the promoter shall file a permit application with the county judge of the county in which the mass gathering will be held." Id. § 751.004 (a). The county judge must hold a hearing "[n]ot later than the 10th day before the date on which the mass gathering will begin[.]" Id. § 751.006(a). Zen applied with defendant Al Cornelius ("Judge Cornelius"), the County Judge of Ellis County, on August 28, 2002 for a permit to hold a music festival on September 21, 2002. Judge Cornelius held a hearing and on September 9, 2002 denied the application.
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 was the official who denied the permit application in this case, the court will refer throughout this opinion to the county judge as the decisionmaker under the statute.
Zen did not, as provided in TMGA § 751.009, appeal the decision to the state district court. Instead, it brought this lawsuit against defendant Ray Stewart ("Sheriff Stewart"), in his official capacity as Sheriff of Ellis County, and Judge Cornelius, in his official capacity as Ellis County Administrator, under 42 U.S.C. § 1983. Zen sought a declaratory judgment that the TMGA is facially invalid under the First Amendment and requested a permanent injunction precluding Sheriff Stewart and Judge Cornelius from enforcing the TMGA. Zen also applied for a preliminary injunction to prevent them from enforcing several requirements of the TMGA with respect to the September 21, 2002 music festival. The court granted the Attorney General of Texas leave to intervene to defend the constitutionality of the TMGA.
Following expedited briefing and oral argument, the court granted in part and denied in part Zen's preliminary injunction application. See Zen Music Festivals, L.L.C. v. Stewart, 2002 WL 31106464 (N.D. Tex. Sept. 19, 2002) (Fitzwater, J.) (" Zen I"), appeal dismissed, 72 Fed. Appx. 168 (5th Cir. Aug. 18, 2003) (per curiam) (unpublished opinion). The court enjoined Sheriff Stewart and Judge Cornelius only from enforcing the TMGA requirement that Zen obtain a permit before holding the September 21, 2002 music festival. Id. at *7. The court did not enjoin it from enforcing any other requirements of the TMGA (e.g., public health, sanitation, or public safety provisions). Id. at *15-*16.
Zen filed suit on September 13, 2002 and on September 16, 2002 sought an emergency preliminary injunction concerning the September 21, 2002 music festival. The court issued a preliminary injunction on September 19, 2002.
The Attorney General appealed the preliminary injunction, and the Fifth Circuit dismissed the appeal as moot. The panel concluded that the Attorney General was appealing a preliminary injunction that prohibited Sheriff Stewart and Judge Cornelius from enforcing permit requirements in relation to a music concert that had already occurred, and that because the terms of the injunction had been fully and irrevocably carried out, any remaining issues should be considered after the trial on the merits. Zen, 72 Fed. Appx. at 170.
The parties have filed cross-motions for summary judgment that they maintain present all issues necessary to resolve this case on the merits. Zen contends that the following two provisions of the TMGA permit requirement render the Act facially unconstitutional under the First Amendment as an unreasonable prior restraint on freedom of expression: § 751.006(a), which does not require that a hearing be held until the tenth day before the beginning of the mass gathering, and § 751.007(a), which provides that the county judge must grant or deny the permit application "[a]fter the completion of the hearing prescribed by Section 751.006," but does not specify a deadline by which the decision must be made, and provides no remedy if no ruling is issued. Defendants maintain that the TMGA's permit requirement is a constitutional content-neutral and narrowly tailored time, place, and manner restriction that does not give a county judge unbridled discretion to grant or deny a permit and that contains sufficient standards to guide his decision and subject it to effective judicial review. They contend that a county judge must rule on an application at least ten days before a mass gathering, which renders the TMGA constitutional, and that the statute must be read to permit a promoter to engage in certain organizational and planning activities before a permit is issued. Defendants also posit that, even when a permit application is denied, alternate avenues of First Amendment expression remain.
The summary judgment motion of Sheriff Stewart and Judge Cornelius is an alternative motion to their motion to dismiss. They seek dismissal on the ground that the case does not present a justiciable case or controversy because Zen's declaratory judgment claim is moot. At oral argument, however, their counsel conceded that, if Zen brings a facial challenge, then under the law of the case this lawsuit is not moot. Zen does posit a facial challenge.
Even absent this concession, the conclusion that the case is not moot is dictated by the Fifth Circuit's opinion dismissing the appeal of the preliminary injunction. The panel held that "the issues underlying the appeal are not moot in the case remaining before the district court." Zen, 72 Fed. Appx. at 170 (quoting Marilyn T. v. Evans, 803 F.2d 1383, 1385 (5th Cir. 1986)).
When Zen filed suit, it challenged several provisions of the TMGA. The court granted injunctive relief, however, only concerning the requirement that Zen obtain a permit under the TMGA to hold the September 21, 2002 music festival. At oral argument on these cross-motions, the court questioned Zen's counsel concerning whether Zen continued to challenge parts of the TMGA other than the two permit provisions. Counsel initially stated that Zen was limiting its motion to these provisos, but he then mentioned two other statutory requirements: § 751.004(b)(8), which requires the promoter to include, inter alia, the name of each performer who has agreed to appear at the mass gathering, and § 751.004(b) (9), which requires a promoter to describe each agreement between the promoter and a performer. Counsel then stated that Zen would like the case to proceed to final judgment based on the two permit provisions at issue because, if these are held unconstitutional, the Texas Legislature can also address the other alleged infirmities. In Zen's summary judgment motion, it explicitly states:
Because the Act does not require a county judge to hold a hearing within any specified time after an application is filed, and does not require a ruling on the application at any specific time after the hearing, Zen will challenge only those deficiencies in this motion. If the Court grants the motion, finding the statute facially invalid, it would be unnecessary for the Court to consider the remaining challenges and they should be dismissed as moot.
P. Br. at 2 n. 8. Given Zen's position at oral argument and its failure in its briefing to identify and demonstrate any legal basis for invalidating §§ 751.004(b) (8) and 751.004(b) (9), the court holds that only the challenges discussed in this opinion are properly before the court for decision.
Except where the context requires that the court differentiate among defendants Sheriff Stewart and Judge Cornelius and intervenor Attorney General of Texas, all references to "defendants" are to defendants and intervenor, collectively.
II
The TMGA represents a prior restraint on speech because it requires a promoter to obtain a permit from the county judge before promoting a mass gathering at which persons intend to engage in expression protected under the First Amendment. See S.E. Promotions, Ltd. v. Conrad, 420 U.S. 546, 553-54 (1975). "[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969).
Although the TMGA is undisputably a prior-restraint statute, the parties dispute at a threshold level whether it should be analyzed as a content-based licensing scheme that must comply with the procedural safeguards addressed in such cases as FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (plurality opinion), and Freedman v. Maryland, 380 U.S. 51 (1965), or evaluated as a content-neutral time, place, and manner statute that is assessed under such cases as Thomas v. Chicago Park District, 534 U.S. 316 (2002). Citing the Fifth Circuit's decision in a case involving a sexually oriented business, Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288 (5th Cir.) (per curiam), cert. denied, ___ U.S. ___, 124 S.Ct. 466 (2003), which noted, inter alia, that Thomas does not affect FW/PBS, see id. at 296 n. 12, Zen reasons that Thomas represents a narrow exception to the Freedman safeguards that applies only when, unlike the present case, regulation of a public forum is involved. Defendants argue that, as this court held in Zen I, the TMGA permit provisions in question are components of a content-neutral statute.
See Zen I, 2002 WL 31106464, at *2.
The court agrees with defendants that the TMGA is properly analyzed as a content-neutral time, place, and manner regulatory scheme. It requires a permit to promote a mass gathering, see TMGA § 751.003, which is defined in terms of where it is to be held (outside the limits of a municipality), how many people it is expected to attract (more than 5,000 persons), and how long it is expected to last (more than five continuous hours), id. § 751.002(1). No aspect of the permit process allows the county judge to consider or deny a permit application based on the viewpoint of a performer or the content of a performance. See id. § 751.007(b) (1)-(9) (setting out findings that permit county judge to deny permit). Indeed, nothing in the required application mandates that an applicant reveal the expected viewpoints that performers will espouse or the content of their performances. See id. § 751.004(b) (1)-(13) (setting out requirements of application). Instead, the TMGA focuses primarily on public health and safety issues associated with conducting a mass gathering. See id. § 751.007 (b) (1)-(9) (setting out grounds on which county judge may deny application). "None of the grounds for denying a permit has anything to do with what a speaker might say." Thomas, 534 U.S. at 322. "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
The county judge may deny a permit on any of the following grounds:
(1) the application contains false or misleading information or omits required information;
(2) the promoter's financial backing is insufficient to ensure that the mass gathering will be conducted in the manner stated in the application;
(3) the location selected for the mass gathering is inadequate for the purpose for which it will be used;
(4) the promoter has not made adequate preparations to limit the number of persons attending the mass gathering or to provide adequate supervision for minors attending the mass gathering;
(5) the promoter does not have assurance that scheduled performers will appear;
(6) the preparations for the mass gathering do not ensure that minimum standards of sanitation and health will be maintained;
(7) the preparations for the mass gathering do not ensure that the mass gathering will be conducted in an orderly manner and that the physical safety of persons attending will be protected;
(8) adequate arrangements for traffic control have not been provided; or
(9) adequate medical and nursing care will not be available.
TMGA § 751.007(b)(1)-(9).
§ 751.004(b) provides:
The application must include:
(1) the promoter's name and address;
(2) a financial statement that reflects the funds being supplied to finance the mass gathering and each person supplying the funds;
(3) the name and address of the owner of the property on which the mass gathering will be held;
(4) a certified copy of the agreement between the promoter and the property owner;
(5) the location and a description of the property on which the mass gathering will be held;
(6) the dates and times that the mass gathering will be held;
(7) the maximum number of persons the promoter will allow to attend the mass gathering and the plan the promoter intends to use to limit attendance to that number;
(8) the name and address of each performer who has agreed to appear at the mass gathering and the name and address of each performer's agent;
(9) a description of each agreement between the promoter and a performer;
(10) a description of each step the promoter has taken to ensure that minimum standards of sanitation and health will be maintained during the mass gathering;
(11) a description of all preparations being made to provide traffic control, to ensure that the mass gathering will be conducted in an orderly manner, and to protect the physical safety of the persons who attend the mass gathering;
(12) a description of the preparations made to provide adequate medical and nursing care; and
(13) a description of the preparations made to supervise minors who may attend the mass gathering.
Zen's reliance on Encore Videos is misplaced. There the Fifth Circuit stated that the relevance of FW/PBS in a case involving a licensing scheme for adult businesses was not affected by Thomas. Although it did so on the ground that the ordinance in question, unlike Thomas, did not concern "regulation of the use of a public forum," Encore Videos, 330 F.3d at 296 n. 12, it did not suggest that Thomas only applies to public fora or that the requirements of FW/PBS and Freedman apply to content-neutral time, place, and manner licensing schemes, like the TMGA, that neither regulate the content of speech nor single out any particular activity or speech (e.g., sexually oriented businesses) for regulation. As the court discusses below, see infra at § III (B), two circuits have decided that Thomas, rather Freedman, applies to content-neutral time, place, and manner licensing schemes, and the court thinks it likely that the Fifth Circuit would agree with the pertinent aspects of their reasoning.
Accordingly, the court holds that the TMGA is a content-neutral time, place, and manner permit statute governed by Thomas.
III A
Zen maintains that the TMGA is facially unconstitutional because § 751.006 (a) does not require a county judge to hold a hearing on an application any sooner than the tenth day before the date on which the mass gathering will begin. It also contends that § 751.007 (a)'s requirement that the county judge must grant or deny the permit "[a]fter the completion of the hearing prescribed by Section 751.006" renders the Act unconstitutional because a county judge might delay a decision on a permit application until the eve of a mass gathering. Zen posits that both provisions enable a county judge to engage in viewpoint discrimination simply by delaying a decision on a permit application, thereby depriving a disfavored speaker or organization of the ability to engage in the advanced planning and arrangements that are normally associated with events as large as a mass gathering (e.g, a speaker or performer who is in sufficient demand to generate a gathering of 5,000 or more people will not commit to perform when the final approval to do so may come as late as ten days beforehand).B
The court granted a preliminary injunction in this case, see Zen I, 2002 WL 31106464, at *1, but its decision is not binding at this stage of the litigation, see Mylett v. Jeane, 910 F.2d 296, 299 (5th Cir. 1990) (holding that findings of fact and conclusions of law disposing of request for preliminary injunction are not binding at trial on merits). Although the court does not lightly reach a different result, two circuit court decisions that interpret and apply Thomas — both of which were issued after the court decided Zen I — persuade it that Zen's facial challenge to the TMGA based on these two provisions must fail.
This result is similar to the one in Southern Oregon Barter Fair v. Jackson County, 372 F.3d 1128 (9th Cir. 2004), which the court discusses below. In that case the district court granted a preliminary injunction against some of the terms of a permit that a government authority issued under a mass gathering law, but it later rejected a facial challenge to the constitutionality of the statute. Id. at 1133. The plaintiff argued on appeal that, because the district court had issued a preliminary injunction, it was bound by the law of the case doctrine to grant summary judgment in the plaintiff's favor. Id. at 1136. The Ninth Circuit disagreed, noting that "[d]ecisions on preliminary injunctions require the district court to assess the plaintiff's likelihood of success on the merits, not whether the plaintiff has actually succeeded on the merits[,]" and that "decisions on preliminary injunctions are just that — preliminary — and must often be made hastily and on less than a full record." Id. (citations omitted). It concluded that, "even though the facial challenge presented to the district court here involved primarily issues of law, we see no reason why the court should have deviated from the general rule that decisions on preliminary injunctions `are not binding at trial on the merits,' and do not constitute the law of the case[.]" Id. (citations omitted).
In Granite State Outdoor Advertising, Inc. v. St. Petersburg, Florida, 348 F.3d 1278 (11th Cir. 2003), the Eleventh Circuit addressed a municipal sign ordinance that required a permit before erecting an off-premise sign within city limits. Id. at 1279-80. The ordinance did not require the city to process an application within any certain amount of time. Id. at 1280. The plaintiff argued that the lack of a specific time limit conferred excessive discretion on city officials, thereby potentially chilling speech before it occurred. Id. at 1281. The panel held that Thomas rather than Freedman applied because the ordinance was content-neutral. Id. at 1281-82. It concluded under Thomas that it was "simply required to assess whether the ordinance contains adequate standards to guide official decision making." Id. at 1282 (citing Thomas, 534 U.S. at 323-24). In Granite, as in the present case, the government authority could only process permit applications based upon objective criteria set forth in the ordinance. Compare id. ("City officials may not exercise unlimited discretion. They can only process permit applications based upon objective criteria set forth in the ordinance.") with TMGA § 751.007(b) (1)-(9). The panel recognized the possibility that delayed processing of applications could chill disfavored speech but declined to address hypothetical, abstract constitutional violations. It reasoned:
Zen does not contend that the grounds for denying a permit allow a county judge to act with unbridled discretion. Instead, it posits that lack of time limits on conducting a hearing or rendering a decision enable a county judge to engage in viewpoint discrimination. See supra note 4.
We realize City officials could potentially delay the processing of certain permit applications and thereby arbitrarily suppress disfavored speech. We will not, however, address hypothetical constitutional violations in the abstract. As the Supreme Court noted in Thomas, we believe "abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements." Furthermore, we are reluctant to invalidate an entire legitimately-enacted ordinance absent more of a showing it is as problematic as Granite claims.Id. (citations omitted) (quoting Thomas, 534 U.S. at 325). Granite therefore supports the conclusion that Zen cannot succeed on its facial challenge to the TMGA based on the two provisos at issue, and that it must bring an as-applied challenge, if and when a pattern of unlawful favoritism appears.
A decision of the Ninth Circuit rendered after the court held oral argument in this case, which addresses the Oregon Mass Gathering Act, Or. Rev. Stat. §§ 433.735-.770, 433.990(6) (2001) ("OMGA"), also supports this conclusion. In Southern Oregon Barter Fair v. Jackson County, 372 F.3d 1128 (9th Cir. 2004), the Southern Oregon Barter Fair ("Fair") sought a permit under the OMGA to hold a fair involving artisans and vendors selling crafts, id. at 1130. The OMGA, which is "similar to mass gathering statutes found in various other states," prohibits a mass gathering unless the county governing body for the location where the gathering is planned has issued a permit. Id. at 1131. The OMGA is similar to the TMGA in several respects, see id. at 1131-32, except that the TMGA has a deadline for holding a hearing on a permit application and implicitly requires that the county judge issue a ruling before the date of the mass gathering, and the OMGA "contains no time limit within which the County must issue a decision on a permit application[,] id. at 1137. The Fair argued, inter alia, that the OMGA was constitutionally defective on its face because — absent a deadline for the local governing body to act on a permit application — it conferred unbridled discretion on the county in the permitting process, enabling the county to disfavor applicants with whose message it disagreed. Id. at 1136-37.
The Ninth Circuit held that in Thomas "the Supreme Court clarified that none of the Freedman safeguards is required of content-neutral time, place and manner permit schemes." Id. at 1137 (citing Thomas, 534 U.S. at 320-23). Just as this court has characterized the TMGA as a content-neutral time, place, and manner regulatory scheme, see supra § II, the Ninth Circuit concluded that the OMGA "is clearly a content-neutral time, place, and manner regulation." Id. "The Act applies to all mass gatherings irrespective of the purpose for the gathering." Id. The court also held that, because the OMGA is content-neutral, "the Act need not contain the procedural safeguards required of content-based regulations" and "need not include . . . a deadline for consideration by the governing body[.]" Id. at 1138 (citing Thomas, 534 U.S. at 322-23). The court recognized that "even content-neutral time, place, and manner regulations may not confer unbridled discretion on the licensing authority, so as to stifle free expression." Id. (collecting cases). And it noted that such restrictions must "contain adequate standards to guide the official's discretion and render it subject to effective judicial review[,]" id. (quoting Thomas, 534 U.S. at 323), and "must provide objective standards that remove the permitting decision from the whim of the official; the absence of such standards enables the official to favor some speakers and suppress others[,]" id. (citing Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 133 (1992)). The court framed the pertinent issue as being whether the OMGA's failure to provide Freedman safeguards conferred unbridled discretion on the county. It concluded that it did not.
We acknowledge the theoretical possibility that, without a deadline, [the] [c]ounty could effectively shut down gatherings by delaying permit decisions indefinitely. The uncertainty of knowing when, if ever, the local governing body will act on the permit application may hamstring the arrangements for such large events, which must be made far in advance. In fact, in this case, the uncertainty inherent in the 1996 application process was one of the Fair's primary reasons for bringing suit. In discussing why the content-neutral ordinance in Thomas adequately limited the discretion of the decision-maker, the Court observed that the ordinance required the municipality to process applications within 28 days. But the Court did not indicate that the deadline was an essential component of a reasonable time, place, and manner regulation. To read the opinion that way would flatly contradict the decision's clear holding that time, place, and manner regulations need not contain the Freedman safeguards. Despite the Court's reference to the 28-day deadline, therefore, we conclude that the procedural safeguards doctrine is relevant only to explicit censorship schemes, not to content-neutral schemes.Id. at 1138 (citations omitted). The Ninth Circuit explicitly rejected the plaintiff's argument that the absence of a deadline to act on a permit application rendered the statute facially unconstitutional.
Here, the overnight mass gatherings the state seeks to regulate raise special health and safety issues because of their size and duration. The state has an eminently valid interest in ensuring the health and safety of its residents and visitors at such large, lengthy events. Just as the complexity of these events requires applicants for mass gathering permits to prepare well in advance, the local governing bodies responsible need time to evaluate applications and conduct inspections, making a strict deadline for permit action impracticable. The lack of a permit application deadline is not sufficient to invalidate the Act on a facial challenge.Id. at 1139 (emphasis added) (citations omitted).
The court concludes that the TMGA is not facially unconstitutional on the grounds that it requires the county judge to hold a hearing only ten days before the mass gathering is to take place and does not explicitly require a ruling at a specific time between the date of the hearing and the date of the mass gathering. In the event that abuse that evinces a pattern of unlawful favoritism occurs, Zen can bring an as-applied challenge to the statute.
* * *
Accordingly, for the reasons set out, the court grants defendants' motions for summary judgment and denies Zen's motion for summary judgment and dismisses this action by judgment filed today.SO ORDERED.