Smith v. Avino

• Decision Date: 12 August 1996
• Docket Number: No. 95-4410,95-4410
• Citation: 91 F.3d 105
• Parties: Robert SMITH, Ernest Porter, American Civil Liberties Union of Florida, Incorporated, a Florida non-partisan organization, Roger Kinkle, on behalf of himself and all others similarly situated, Plaintiffs-Appellants, William Pitts, Plaintiff, v. Joaquin AVINO, in his official capacity as manager of Metropolitan Dade County, Florida, Metropolitan Dade County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 105

91 F.3d 105

Robert SMITH, Ernest Porter, American Civil Liberties Union

of Florida, Incorporated, a Florida non-partisan

organization, Roger Kinkle, on behalf of himself and all

others similarly situated, Plaintiffs-Appellants, William Pitts, Plaintiff, v. Joaquin AVINO, in his official capacity as manager of

Metropolitan Dade County, Florida, Metropolitan

Dade County, Defendants-Appellees.

No. 95-4410.

United States Court of Appeals,

Eleventh Circuit.

Aug. 12, 1996.

Howard M. Talenfeld, Colodny, Fass & Talenfeld, P.A., Fort Lauderdale, FL, Terry Albritton, Tulane Law School, New Orleans, LA, for appellants.

Roy Wood, Office of County Attorney, Miami, FL, for appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, and RONEY and PHILLIPS ^*, Senior Circuit Judges.

RONEY, Senior Circuit Judge:

This is an official capacity suit against Metropolitan Dade County and its manager challenging the curfew that was imposed in the wake of Hurricane Andrew. The plaintiffs alleged the curfew was unconstitutionally vague and overly broad, both facially and as applied, and sought a declaratory decree, damages, and attorneys fees pursuant to 42 U.S.C. § 1988.

A final judgment for the defendants resulted from the decisions of two district judges: Judge K. Michael Moore denied plaintiffs' motion for summary judgment alleging the facial invalidity of the curfew, holding that the curfew was neither vague nor overbroad. Smith v. Avino, 866 F.Supp. 1399 (Oct. 20, 1994). In a subsequent order, he declined to reconsider that decision and refused 28 U.S.C. § 1292(b) certification for immediate appeal. Smith v. Avino, Case No. 92-2593-Civ-Moore (Dec. 8, 1994). Judge Jacob Mishler held a bench trial of the "as applied" claims. These claims asserted that the curfew was overbroad because it impinged on plaintiffs' personal liabilities, primarily the right of travel, and continued after the emergency had passed; and that the curfew was void for vagueness because it was selectively enforced against these plaintiffs. Based upon his findings of fact, Judge Mishler resolved the issues against the plaintiffs, and, declining to reconsider the earlier decisions of Judge Moore, entered final judgment for the defendants. Smith v. Avino, Case No.92-2593-Civ-Moore/Mishler (Feb. 27, 1995). Plaintiffs appeal all three of those decisions.

Holding that these judges applied the correct standard in considering challenges such as this one to curfews promulgated in times of natural disaster emergencies, made not clearly erroneous findings of fact, and properly held that based on those facts and the correct standard of review, the curfew was not unconstitutionally vague or overly broad, we affirm.

We decide this case on the basis of the constitutionality of the curfew. Defendants argued that because the defendant county manager and the County itself acted as agents or instrumentalities of the State of Florida, they cannot be held liable because they were not the final policy making authorities and are immune from suit under the Eleventh Amendment. Judge Moore refused to dismiss the case on this ground. Judge Mishler held that declaratory relief outlining the permissible scope of future executive actions would be an advisory opinion contrary to Article III jurisdiction. We voice no opinion as to the correctness of those decisions. We assume, without deciding, that plaintiffs here are entitled to a decision addressing their concerns about the constitutionality of the curfew.

As an alternative basis for affirming the district court, defendants ask this Court to hold they are immune from suit under the Eleventh Amendment, an argument plaintiffs argue has been waived. Under the law of this Circuit, Eleventh Amendment immunity is considered to be in the nature of subject matter jurisdiction, which can be considered at any time in the litigation and cannot be waived by the parties. Zatler v. Wainwright, 802 F.2d 397, 399 (11th Cir.1986) (This Court is duty bound to "review [its] jurisdiction at any point on appeal, ... and the eleventh amendment 'partakes of the nature of a jurisdictional bar' ") (citations omitted); Whiting v. Jackson State University, 616 F.2d 116, 127 n. 8 (5th Cir.1980) ("Although neither [defendant] has raised the bar of the eleventh amendment, we consider it sua sponte because a defense based upon the eleventh amendment is in the nature of a jurisdictional bar."). Compare Benning v. Board of Regents of Regency Universities, 928 F.2d 775, 777 n. 2 (7th Cir.1991) ("We are not obliged to reach the Eleventh Amendment issue because the Eleventh Amendment doctrine of sovereign immunity, though often characterized as jurisdictional, does not function as a true jurisdictional bar.").

Though it is the usual practice to resolve subject matter jurisdiction issues before reaching the merits, it is permissible for the Court to bypass jurisdictional questions and decide the case on the merits when the jurisdictional issue is difficult, the law is not well-established, and a decision on the merits favors the party who has raised the jurisdictional bar. See Slocum v. United States, 515 F.2d 237, 238 n. 2 (5th Cir.1975) (Regarding whether agriculture department order reviewable under the APA, court decided there was no need to take up the "interesting" jurisdictional question when a finding of no jurisdiction would produce the same result reached on the merits). See also Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F.2d 151 (2d Cir.1990) (Lengthy discussion of court's decision to assume subject-matter jurisdiction in case where operator of waste disposal facility challenging requirement of Environmental Protection Agency). See generally Case Comment, Assuming Jurisdiction Arguendo: The Rationale and Limits of Hypothetical Jurisdiction, 127 U. of Pa.L.Rev. 712 (1979). Though rarely used, the device of assuming without deciding subject matter jurisdiction seems appropriate in this case.

Hurricane Andrew struck Dade County, Florida, on August 24, 1992. The storm's widespread destruction to homes, roads, power, and communication services is undisputed. The Governor of the State of Florida issued an Executive Order that declared a state of emergency and provided that Miami city and Metropolitan Dade County officials could impose curfews until December 21, 1992. The county manager issued a proclamation setting a curfew for the County from 7:00 pm to 7:00 am. The National Guard, as well as other law enforcement officials, was called in to assist local police. Over the next few weeks, the curfew was modified as to geographical area and time of enforcement. By October 2, 1992, the curfew was in effect from 10:00 pm through 5:00 am and covered a specified area of south county. Each proclamation required that persons in the affected area were to remain in their homes during the curfew hours, unless otherwise authorized. The curfew was lifted November 16, 1992, twenty-four hours after the National Guard departed.

The challenged curfew language required that "[a]ll persons residing in these areas are commanded to remain in their homes during the hours of the curfew, unless otherwise authorized by Dade County, State of Florida or federal officials."

The basic law concerning the vagueness and overbreadth of legislative authority has been established by the Supreme Court. A statute is void for vagueness when its prohibition is so vague as to leave an individual without knowledge of the nature of the activity that is prohibited. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). To pass constitutional muster, a statute must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.... [and] provide explicit standards for those who apply [it]" to avoid arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Even a clear, precise ordinance may be...