Church of Scientology v. City of Clearwater, 84-96-CIV-T-17.

• Decision Date: 02 July 1991
• Docket Number: No. 84-96-CIV-T-17.,84-96-CIV-T-17.
• Parties: CHURCH OF SCIENTOLOGY FLAG SERVICES ORG., INC., Plaintiff, v. CITY OF CLEARWATER, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

773 F. Supp. 321

CHURCH OF SCIENTOLOGY FLAG SERVICES ORG., INC., Plaintiff, v. CITY OF CLEARWATER, et al., Defendants.

No. 84-96-CIV-T-17.

United States District Court, M.D. Florida, Tampa Division.

July 2, 1991.

Eric M. Lieberman, Katherine Stone, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, Paul B. Johnson, Johnson, Paniello & Hayes, Tampa, Fla., for plaintiff.

Frank Kowalski, Chief Asst. City Atty., Dennis L. Repka, Sargent, Repka, Covert, Steen & Zimmet, P.A., Clearwater, Fla., for defendants.

ORDER ON MOTIONS

KOVACHEVICH, District Judge.

This cause is before the Court on the following:

Dkt. 106 Order to show cause before 7/21/87 why this case should not be dismissed for lack of prosecution.

Dkt. 107 Response to the Court's order to show cause why this case should not be dismissed for failure to prosecute by Plaintiff.

Dkt. 108 Motion for attorneys' fees and costs by Plaintiff, filed October 19, 1987.

Dkt. 109 Memorandum of law in support of Plaintiff's motion for attorneys' fees and costs filed October 19, 1987.

Dkt. 110 Affidavit in support of Plaintiff's motion for attorneys' fees with Exhibits A-P attached by Eric M. Lieberman, filed October 19, 1987.

Dkt. 113 Memorandum in response to Plaintiff's application for attorneys' fees and costs by Defendants with Exhibits filed under separate cover, filed November 19, 1987.

Dkt. 117 Reply memorandum in support of Plaintiff's application for attorneys' fees and costs by Johnson & Hayes, counsel for Plaintiff, filed December 16, 1987.

Dkt. 118 Supplemental memorandum of law in support of Plaintiff's application for attorneys' fees and costs by Plaintiff, filed July 14, 1989.

Dkt. 124 Defendants' reply to Plaintiff's supplemental memorandum seeking attorneys' fees for proceedings relating to Clearwater's initial ordinance, filed May 2, 1991.

FACTS

1. On October 6, 1983, Defendant City of Clearwater (Clearwater) enacted Ordinance No. 3091-83, to become effective January 31, 1984. The purpose of the ordinance was to regulate charitable solicitations within the city. The ordinance required charitable organizations that wanted to solicit funds in Clearwater to register with the city, maintain specified records, disclose the sources and uses of their contributions, refrain from engaging in fraudulent solicitation practices and submit to an investigation by the City Attorney if ten or more individuals complained about the organization's activities. Clearwater patterned the ordinance after a similar Houston ordinance, upheld as constitutional by the Fifth Circuit Court of Appeals. See International Society of Krishna Consciousness of Houston, Inc. ISKCON v. City of Houston, 689 F.2d 541 (5th Cir. 1982).

2. On January 20, 1984, Americans United for Separation of Church and State (Americans United) brought a ten-count action in the Federal District Court of the Middle District of Florida (the Court) to enjoin Clearwater from enforcing the ordinance. Each count raised a discrete constitutional claim.

3. On January 23, Plaintiff Church of Scientology Flag Services Organization, Inc. (Scientology) brought a separate twelve-count action for injunctive relief on similar constitutional grounds. Both Plaintiffs moved for temporary restraining orders pursuant to Rule 65(b), Federal Rules of Civil Procedure. Scientology's case number was 84-96-Civ-T-17 (hereinafter 84-96).

The Court, pursuant to Rule 65(a)(2), Federal Rules of Civil Procedures, consolidated the parties' motions for injunctive relief with the trial on the merits, and scheduled a hearing on the issue of a permanent injunction. At the hearing, the parties requested the Court to limit the scope of the hearing to the facial validity of the ordinance. Clearwater stated that it would not challenge Scientology's standing, except as to the claims alleging that the ordinance violated the freedom of religion clauses of the first amendment. After argument on the facial validity of the ordinance, the Court directed counsel to file post-hearing Memoranda by March 16.

4. On March 15, Clearwater enacted Emergency Ordinance No. 3479-84, as an amendment to Ordinance No. 3091-83. Like Ordinance No. 3091-83, the amended ordinance comprehensively regulated charitable solicitation and effectively repealed Ordinance No. 3091-83. As an emergency ordinance, No. 3479-84 would automatically expire after 90 days if not passed as a non-emergency ordinance within that time. In addition, Ordinance No. 3479-84 explicitly provided for its expiration in 90 days. Clearwater notified the Court and Plaintiffs of the amended ordinance.

5. On March 28, the Court determined that repealed Ordinance No. 3091-83 was unconstitutional and permanently enjoined its application and enforcement. The Court did not specify which of the several counts of the Plaintiffs' complaints it was deciding. The Court terminated the Americans United case and dismissed all but one count of Scientology's complaint in 84-96, retaining jurisdiction for the enforcement of the executory provisions of its order.

6. On April 5, Clearwater appealed the District Court's injunctive orders as to Ordinance No. 3091-83, pursuant to 28 U.S.C. § 1292(a)(1) (1982). Section 1292 provides that Courts of Appeals have jurisdiction over appeals from interlocutory orders of the District Court's granting or refusing to grant injunctions.

7. On April 20, Scientology, seeking to enjoin the enforcement of Emergency Ordinance No. 3479-84, moved the District Court for leave to amend the remaining count of its 84-96 complaint. The proposed amendment set out the same constitutional challenges that Scientology had raised in opposition to the original ordinance. At the same time, Scientology moved the Court for a temporary restraining order prohibiting Clearwater from enforcing Ordinance No. 3479-84.

8. On May 17, Clearwater enacted Ordinance No. 3479-84 as a permanent ordinance.

9. On May 21, Americans United filed a new action in the District Court seeking injunctive relief and challenging the constitutionality of Ordinance No. 3479-84 on the grounds raised in its previous suit. Simultaneously, Americans United moved for a temporary restraining order, which the Court granted.

10. On May 24, Scientology filed a new suit, seeking essentially the same relief as Americans United. The Case was given the number 84-719-Civ-T-17 (hereinafter 84-719). Scientology's action asked for declaratory and injunctive relief. Scientology contended that:

A) The amended ordinance was enacted to single out Scientology for harassment and persecution in violation of the establishment and free exercise clauses of the first amendment and the equal protection and due process clauses of the fourteenth amendment;

B) On its face and as applied to all religious groups, the amended ordinance violates the first, fourth, fifth and ninth amendments of the United States Constitution; sections 2, 3, 4, 5, 9, 17, and 23 of Article I of the Florida Constitution; Florida Statutes § 166.04(a); and Clearwater City Charter § 2.09. Scientology alleges that the case arises under 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. §§ 2201 and 2202.

11. At this point, Scientology had two identical suits pending, 84-719 and 84-96. The two Scientology cases and the American United case challenging amended Ordinance No. 3479-84 were not consolidated by the District Court.

12. On July 13, the District Court heard argument of Americans United and Scientology counsel at a scheduled hearing limited to the question of the facial constitutionality of Ordinance No. 3479-84 in the abstract. The Court did not consider the merits of any of the pending motions or receive any evidence. The Court found that Ordinance No. 3479-84 was facially constitutional. However, the Court encouraged an immediate interlocutory appeal to the Eleventh Circuit Court of Appeals, pursuant to 28 U.S.C. § 1292(b) (1982). The Court also issued a temporary restraining order enjoining Clearwater from enforcing the ordinance pending the disposition of any appeals that might be taken. In its written orders, the Court converted its temporary restraining orders to preliminary injunctions prohibiting Clearwater from enforcing the portions of Ordinance No. 3479-84 that dealt with a charitable organization's obligation to register with the city and to maintain certain records.

13. On July 31, Scientology moved the District Court, in both of its cases, 84-719 and 84-96, for temporary restraining orders prohibiting Clearwater from enforcing all provisions of the Ordinance No. 3479-84. Scientology also moved the Court to schedule an evidentiary hearing on its pending application for a preliminary injunction.

14. On August 2, the Court denied Scientology's motion for a temporary restraining order prohibiting Clearwater from enforcing Ordinance No. 3479-84 and denied Scientology's motion for a hearing on its application for a preliminary injunction.

15. On August 3, Scientology appealed the District Court's July 23 orders declaring Ordinance 3479-84 constitutional and enjoining the enforcement of less than all of Ordinance No. 3479-84. Scientology also appealed the District Court's August 2 order denying Scientology's motion for a temporary restraining order and a preliminary injunction.

16. On November 1, the Eleventh Circuit Court of Appeals

A) vacated the District Court's order prohibiting Clearwater from enforcing repealed Ordinance No. 3091-83 because the controversy was moot; the Eleventh Circuit remanded the two cases with instructions that they be dismissed without prejudice;

B) dismissed the section 1292(b) interlocutory appeals from the District Court's determination that amended Ordinance No. 3479-84 was facially constitutional; the Eleventh Circuit vacated the orders that allowed the appeals to proceed;

C) affirmed the District Court's refusal to grant Scientology's applications for preliminary injunctions because Scientology...