Burke v. City of Charleston

• Decision Date: 18 March 1998
• Docket Number: No. 95-2475,95-2475
• Citation: 139 F.3d 401
• Parties: Robert BURKE, Doctor, Plaintiff-Appellant, v. CITY OF CHARLESTON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 401

139 F.3d 401

Robert BURKE, Doctor, Plaintiff-Appellant, v. CITY OF CHARLESTON, Defendant-Appellee.

No. 95-2475.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1996.

Decided March 18, 1998.

ARGUED: Robert Marchant O'Neil, The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, VA, for Appellant. John Hamilton Smith, Young, Clement, Rivers & Tisdale, L.L.P., Charleston, SC, for Appellee. ON BRIEF: J. Joshua Wheeler, The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, VA; Gregory S. Forman, Charleston, SC, for Appellant. Stephen P. Groves, Stephen L. Brown, Young, Clement, Rivers & Tisdale, L.L.P., Charleston, SC; William B. Regan, Frances I. Cantwell, Regan & Cantwell, Charleston, SC, for Appellee.

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and DAVIS, United States District Judge for the District of Maryland, sitting by designation.

Vacated and remanded by published opinion. Judge DAVIS wrote the majority opinion, in which Judge LUTTIG joined. Chief Judge WILKINSON wrote a dissenting opinion.

OPINION

DAVIS, District Judge:

Appellant Robert Burke, an artist working in South Carolina, challenges the constitutionality of a City of Charleston historic preservation ordinance that governs proposed alterations to exteriors of structures located within historic areas of the city. Burke painted a mural on the exterior wall of a restaurant located in an historic area, but the city's Board of Architectural Review invoked the ordinance and denied the restaurant owner a permit to display the mural. Burke filed suit, and the district court, after a non-jury trial, entered judgment in favor of the city. Burke appeals.

We do not reach the merits of Burke's constitutional challenge because we find that Burke lacks standing to assert a First Amendment claim. Burke relinquished his First Amendment rights when he sold his mural to the restaurant owner, who alone has the right to display the mural. Thus, lacking a legally cognizable interest in the display of his work, Burke has not suffered an injury sufficient to satisfy the constitutional requirements for standing. Moreover, even were we to conclude that Burke has suffered injury-in-fact, a decision from this Court in Burke's favor would not redress directly, if at all, the injury Burke presumably suffers. Accordingly, we vacate the judgment and remand with instructions to dismiss the complaint.

I.

Ron Klenk (who is not a party to this appeal) owns a late federal style building located at 348 King Street in Charleston, South Carolina. Klenk operated a night club on the second floor of his building. Klenk decided to open a bar and grill on the first floor of the building. Impressed with the "world of creatures" Burke had created and displayed at an art show held in the night club, Klenk commissioned Burke to paint a mural depicting the creature world on the exterior masonry wall of the building, which is visible from King Street. At the time of the commission, a mural depicting a willow tree adorned the exterior wall. Burke painted over the willow tree mural with his "colorful cartoon of imaginary characters, including smiling mountains, flying creatures with impractically small wings and tiny yellow bipeds." Through the mural, Burke attempts to convey a message of tolerance for diversity by showing different creatures co-existing peacefully.

Klenk's property is located within the Old and Historic District ("District") of Charleston. The District boasts the largest collection--numbering approximately 2800--of historically significant buildings in the United States. The District is the heart of tourist interest in Charleston. In 1931, to further the establishment of an architecturally harmonious environment throughout the District, Charleston enacted its historic preservation ordinances and established its Board of Architectural Review ("BAR"). The BAR reviews all proposed exterior or fixed structural alterations, signs, murals, or other exterior changes to structures in the District before they are effected. The BAR's purpose is to ensure that alterations are complementary in style, form, color, proportion, texture, and material. Thus, those seeking to make such alterations must submit to the BAR an application for a permit and a proposal describing the work to be done.

Neither Burke nor Klenk applied for a permit before Burke began to paint the mural. The BAR discovered Burke's mural while Burke was painting it, and issued a stop work order. Subsequently, Klenk--not Burke--filed an application for a permit. The parties agreed to cover the mural with plywood pending approval of Klenk's permit application. Subsequently, they agreed to keep the mural covered for the duration of this litigation.

Burke's mural generated public controversy and extensive media attention. Many city residents opposed Burke's mural; others were favorably impressed. A fast food restaurant outside the District commissioned Burke to paint two murals similar to the creature world mural he painted on Klenk's wall. According to Burke, another restaurant owner, whose building is located within the District, approached Burke about the possibility of painting a creature world mural at his restaurant; nothing came of this contact, however, as Burke felt he was precluded by the ordinance from painting another creature world mural in the District. Eventually, the BAR held a public hearing during which Burke, represented by counsel, submitted letters from various supporters of the mural. Others spoke against the mural at the hearing. At the conclusion of the hearing, the BAR issued a report denying Klenk's permit application. The BAR stated that the mural's size, scale, and "garish" colors did not blend with the surrounding area and that the mural was inappropriate for display in the District.

Burke, but not Klenk, filed suit in district court, alleging that the BAR's decision to deny Klenk's permit, the lack of articulable standards for approving work, and the use of a vague and overbroad ordinance, violated Burke's free speech and equal protection rights under the first and fourteenth amendments. In its answer, the city raised Burke's lack of standing as an affirmative defense. Later, however, the city voluntarily abandoned this defense. At the conclusion of a non-jury trial, the district court issued its findings of fact and conclusions of law in a thoughtful and carefully-reasoned opinion. Burke v. City of Charleston, 893 F.Supp. 589 (D.S.C.1995).

The district court addressed the issue of standing, noting the Second Circuit rule that an artist who sells his work to the government relinquishes his right to have his work displayed. See Serra v. United States Gen. Serv. Admin., 847 F.2d 1045 (2d Cir.1988). The district court distinguished Serra, however, on the ground that the artist in that case was not precluded by an ordinance from displaying his expression. The court also noted that the historic preservation ordinance would operate to thwart Burke's future efforts because it would preclude him from painting another creature world mural for the interested restaurant owner whose property is also located within the District. The court concluded that Burke had standing to pursue his claims, but ultimately held that Burke failed to prove his constitutional rights were violated, and entered judgment in favor of the city as to all claims. Burke brought the present appeal, challenging only the lower court's ruling on the First Amendment issue, while abandoning his equal protection claim.

II.

" '[E]very federal appellate court has a special obligation to "satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review," even though the parties are prepared to concede it.' " Arizonans for Official English v. Arizona, 520 U.S. 43, ----, 117 S.Ct. 1055, 1071, 137 L.Ed.2d 170 (1997) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)). "And if the record discloses that the lower court was without jurisdiction [a reviewing] court will notice the defect, although the parties make no contention concerning it." Id. at ----, 117 S.Ct. at 1072 (quoting United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 831, 80 L.Ed. 1263 (1936)) (brackets in original). With these guiding principles in mind, we proceed to examine the question whether Burke has standing to bring a First Amendment claim.

"Article III of the United States Constitution limits federal courts to resolving actual cases and controversies." Finlator v. Powers, 902 F.2d 1158, 1160 (4th Cir.1990). A litigant does not satisfy Article III's mandate merely by "request[ing] a court of the United States to declare its legal rights" in terms "that have a familiar ring to those trained in the legal process." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). Rather, the judicial power to pass constitutional judgment "is legitimate only in the last resort," Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 402, 36 L.Ed. 176 (1892), and as a necessity in determining "actual cases ... involving issues that are precisely framed by their connection to specific litigants in a concrete context." Gilles v. Torgersen, 71 F.3d 497, 500 (4th Cir.1995). ¹

The Supreme Court has articulated various rules which govern the justiciability of disputes. The standing requirement, "perhaps the most important" condition of justiciability, Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), ensures a litigant has a sufficient personal stake in an otherwise justiciable controversy such that the judicial process appropriately should resolve the controversy. Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972). While the...