Arizona Civil Liberties Union v. Dunham
| Decision Date | 30 September 1999 |
| Docket Number | No. Civ 98-2073-PHX-ROS.,Civ 98-2073-PHX-ROS. |
| Citation | 88 F.Supp.2d 1066 |
| Parties | ARIZONA CIVIL LIBERTIES UNION, et al., Plaintiffs, v. Cynthia L. DUNHAM, Mayor of the Town of Gilbert, Arizona, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Timothy Andrew Nelson, Brown & Bain, PA, Phoenix, AZ, for Arizona Civil Liberties Union, plaintiff.
Gary Stuart McCaleb, The American Center for Law & Justice, Scottsdale, AZ, Kevin H. Theriot, Lawrenceville, GA, for Cynthia L. Dunham, Mayor of the Town of Gilbert, Arizona, defendant.
Jay M. Martinez, Martinez & Curtis PC, Phoenix, AZ, for Town of Gilbert, an Arizona municipality, defendant.
Plaintiffs, the Arizona Civil Liberties Union (AzCLU) and three individuals who are residents of the Town of Gilbert, Arizona, filed a Complaint on November 16, 1998 alleging that Defendants, the Town of Gilbert and Cynthia Dunham, Mayor of Gilbert, violated the Establishment Clause contained in the First Amendment of the United States Constitution,1 as well as Article 2, Section 12 of the Arizona Constitution, by issuing a proclamation declaring the week of November 23-30, 1997 as "Bible Week in Gilbert, Arizona" and urging fellow citizens to read the Bible. (Amended Compl. at ¶¶ 11-13). Plaintiffs further alleged that Defendants were about to violate the Establishment Clause and the Arizona Constitution again by issuing a Bible Week Proclamation in 1998. On November 16, 1998, this Court granted Plaintiffs' request for a temporary restraining order ("TRO") enjoining the Defendants from officially proclaiming "Bible Week" or any similar observance in 1998. The parties stipulated to an extension of a hearing date on Plaintiffs' Application for a preliminary injunction. Thereafter Plaintiffs withdrew the Application upon Mayor Dunham's representation that she would not issue another Bible Week Proclamation prior to November, 1999.
Because Defendants did not issue a Bible Week Proclamation in 1998 due to the Court's Order, the claims regarding the proposed 1998 Proclamation are moot. In recognition of this change in the action, Plaintiffs filed an Amended Complaint on December 15, 1998 seeking a permanent injunction prohibiting Defendants from both issuing Bible Week proclamations materially similar to the one issued in 1997 and expending public funds to do so. Alternatively they seek a declaratory judgment that all such proclamations are unconstitutional. Plaintiffs also request that Defendants be ordered "to rescind all prior Bible Weeks in Gilbert". In addition, the Amended Complaint contains a request for nominal and compensatory damages.
Pending before the Court are the Town of Gilbert's Motions to Dismiss and the Mayor's Motion to Dismiss and to Strike Portions of Plaintiffs' Complaint. Also pending are the Mayor's Motion to Strike or to Exclude From Consideration Plaintiffs' Materials Outside the Pleadings, and other related Motions.
At a meeting of the Gilbert Town Council on November 11, 1997, Mayor Dunham issued a Proclamation declaring the week of November 23-30, 1997 to be "Bible Week in Gilbert, Arizona." (Am.Compl. at ¶ 11). The Proclamation, bearing the official seal of the Town of Gilbert, was signed by the Mayor and attested to by the Gilbert Town Clerk. The text of the Proclamation provided as follows:
TOWN OF GILBERT, ARIZONA
NOW, THEREFORE, I, Cynthia L. Dunham, Mayor of the Town of Gilbert, Arizona do hereby proclaim:
NOVEMBER 23 - NOVEMBER 30, 1997
as
"BIBLE WEEK IN GILBERT, ARIZONA"
and I urge all my fellow citizens to participate in the observance of BIBLE WEEK by reading the Bible and discovering for themselves its values for personal and community life.
IN WITNESS THEREOF, I HEREBY
SET MY
HAND AND AFFIX THE OFFICIAL
SEAL OF
THE TOWN OF GILBERT, ARIZONA
THIS
11th DAY OF NOVEMBER, 1997
------
CYNTHIA L. DUNHAM, MAYOR
ATTEST
------
The Mayor and the Town of Gilbert have issued similar proclamations prior to 1997. (Am.Compl. at ¶ 18). To issue, copy, and distribute the Proclamation, Defendants used public money and property including publicly-funded certificates and stationery, a printer, ink, a computer, and other supplies and equipment. (Am.Compl. at ¶ 16). Additional public expenditures included salaries for the time it took the Mayor to sign the Proclamation and the clerk to attest to it. (Id. at ¶¶ 15-16).
In November, 1998 Defendants again placed a Bible Week Proclamation on a Town Council meeting agenda. Due to the issuance of the TRO in the instant action, the proposed 1998 Bible Week Proclamation was not issued; however, Mayor Dunham plans to declare a "Bible Week" again in 1999. (Dunham Dep. at 78, Exh. H. to Surresponse to Levine Aff.) Upon information and belief, Plaintiffs assert that the Bible Week proclamations the Mayor intends to proclaim in the future will differ from the 1997 Proclamation only in that the following sentence will be deleted: "and I urge all my fellow citizens to participate in the observance of BIBLE WEEK by reading the Bible and discovering for themselves its values for personal and community life." (Am.Compl. at ¶¶ 26-27).
After Defendants filed Motions to Dismiss pursuant to both Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, Plaintiffs filed a Response to which nine exhibits are attached. Mayor Dunham subsequently filed a Motion requesting that the Court strike or exclude from consideration several of Plaintiffs' exhibits. The Plaintiffs are correct that, in resolving the issue of standing set forth in Mayor Dunham's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), the Court may consider affidavits and other evidence outside the pleadings. Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996) (quoting St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 541, 107 L.Ed.2d 539 (1989)); Arrington v. Wong, 19 F.Supp.2d 1151, 1154 (D.Haw.1998). Consideration of such evidence does not convert the Motion to Dismiss into a Motion for Summary Judgment. Id. In her Reply, Mayor Dunham concedes that the exhibits can be considered on the issue of standing. Accordingly, Plaintiffs' exhibits B, D, E, and G, all of which pertain to the standing issue, will be considered.
In her Reply to the Motion to Strike or Exclude, Mayor Dunham continues to request that the exhibits listed above, as well as Plaintiff's exhibit I, be excluded from consideration in resolving the alternative basis on which dismissal is requested — that Plaintiffs have failed to state a claim for violation of either the Establishment Clause or its counterpart in the Arizona Constitution. See Fed.R.Civ.P. 12(b)(6). Because the Court has concluded that Plaintiffs lack standing, the Court did not reach the issue of whether the Bible Week Proclamation violated the Establishment Clause. Thus, the Court need not decide whether the exhibits should have been excluded from consideration in addressing that issue. The Motion to Strike or Exclude will be denied.
Article III of the United States Constitution limits federal judicial power to the resolution of "cases" or "controversies". Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). If an action does not present a live case or controversy, this Court lacks jurisdiction over the subject matter of the action. Defendants request dismissal due to lack of subject matter jurisdiction on the grounds that the action is moot and the Plaintiffs lack standing.
A motion to dismiss for lack of jurisdiction over the subject matter is brought pursuant to Federal Rule of Civil Procedure 12(b)(1). If a motion under Rule 12(b)(1) challenges a complaint on its face, the Court assumes the allegations in the complaint to be true. Crisp v. United States, 966 F.Supp. 973, 974 (E.D.Cal. 1997). Defendants' argument that the action is moot is a facial challenge based solely on the complaint. However, Defendants support their challenge to standing by submitting evidence as they are entitled to do. See Dreier, 106 F.3d at 847 (quoting St. Clair, 880 F.2d at 201). Because Defendants have submitted evidence on the issue, Plaintiffs have the burden of offering evidence of standing sufficient to...
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Arizona Civil Liberties Union v. Dunham
...individual residents of the Town of Gilbert, had not established standing to maintain the action. See Arizona Civil Liberties Union v. Dunham, ("AzCLU"), 88 F.Supp.2d 1066 (D.Ariz.1999). Plaintiffs had alleged that Defendants violated the Establishment Clause by issuing a Proclamation decla......
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Religion, the public square, and the presidency.
...WASH. TIMES, Dec. 26, 1998, at A1. (96.) The case was later dismissed on standing grounds. Arizona Civil Liberties Union v. Dunham, 88 F. Supp. 2d 1066 (D. Ariz. 1999) (dismissing claim on standing grounds), vacated in part on reconsideration, 112 F. Supp. 2d 927 (D. Ariz. 2000) (holding on......