Cook v. Baca

• Decision Date: 25 April 2000
• Docket Number: No. Civ.99-00322BB/WWD.,Civ.99-00322BB/WWD.
• Citation: 95 F.Supp.2d 1215
• Parties: Elizabeth H. COOK, Frank Bowden, and James Cooper, Plaintiffs, v. Jim BACA, in his capacity as Mayor of the City of Albquerque, and The City of Albuquerque, Defendants.
• Court: U.S. District Court — District of New Mexico

Page 1215

95 F.Supp.2d 1215

Elizabeth H. COOK, Frank Bowden, and James Cooper, Plaintiffs, v. Jim BACA, in his capacity as Mayor of the City of Albquerque, and The City of Albuquerque, Defendants.

No. Civ.99-00322BB/WWD.

United States District Court, D. New Mexico.

April 25, 2000.

David A. Standridge, Jr., Albuquerque, NM, for plaintiffs.

Kathryn Levy, Mark A. Hirsch, Assistant City Attorneys, Albuquerque, NM, for defendants.

OPINION

BLACK, District Judge.

THIS MATTER is before the Court on Plaintiff's Motion for Summary Judgment (Doc. 28) and Defendant's Motion for Summary Judgment (Doc. 34), both filed January 21, 2000. The Court has reviewed the motions, the memoranda submitted by the parties, and the relevant authorities. The Court finds that Defendants' argument is well taken and rejects Plaintiffs' argument. The Court, therefore, GRANTS Defendants' Motion for Summary Judgment, and DENIES Plaintiffs' Motion for Summary Judgment.

I. BACKGROUND

A. Facts and Procedural History

Each month the City of Albuquerque sends out a water bill to the city water users. The water bill consists of five elements: (1) the bill's base charge; (2) the customer's monthly water consumption; (3) one or two water conservation tips; (4) a bar graph comparing the billed month with the corresponding month in the previous year, the previous month, and the city's residential average; and (5) "[a]n information bulletin from the Mayor's office."¹ In the box reserved for the mayor, each month the mayor provides a short message to all the city's water users.²

On the city water bill in March 1999, the message box from the mayor consisted of the message:

75% of Albuquerque's streets are deteriorating. Don't forget to mail in your ballot to the City Clerk by March 31, 1999 for the Quarter Cent Transportation Initiative.

                        —Mayor Jim Baca
                

The Quarter Cent Transportation Initiative proposed a quarter cent sales tax that would enable the city to raise more than 250 million dollars over ten years to fix roads, improve bus service, and expand recreational trails. City voters passed the Transportation Initiative.

Several days before the vote on the initiative, Plaintiffs filed suit against Defendants alleging Defendants' actions violated their rights. Specifically, Plaintiffs alleged that Defendants' use of the water bill and the timing of its use denied: (1) Plaintiffs their right to a republican form of government in violation of Article IV of the Constitution; (2) Plaintiffs access to a public forum for expression of their viewpoints in violation of the First Amendment; (3) Plaintiffs equal access to a public forum in violation of the Fourteenth Amendment; (4) Plaintiffs rights and privileges secured by the Constitution in violation of 42 U.S.C. § 1983.

In late July 1999, plaintiff James Cooper, on behalf of "Concerned Citizens," sent a letter to the city attorney requesting the placement of a message on behalf of Concerned Citizens in the September water bill. The letter, stated the group's understanding that the message box in the water bill was a public forum, and requested the message:

Concerned Citizens urges you to vote against the City Charter Amendments that will appear on the October ballot. For Information call: 242-6223.

The city attorney responded to Mr. Cooper with a letter denying his request and explained that the City "does not allow political positions to be included in the water bill." Doc. 29, exh. M.

On October 1, 1999 both parties stipulated to an Order (Doc. 18) allowing Plaintiffs to file a Supplemental Complaint, and attached the supplemental complaint to the order. Plaintiffs' supplemental complaint set forth essentially the same factual allegations as in the original complaint, and then added new facts regarding Plaintiffs' letter to the city and the city's rejection of their request, as well as three additional claims against the city.³ Mirroring claims in the original complaint, Plaintiff claimed: (1) the city denied Plaintiffs access to a public forum in violation of the First Amendment; (2) the city denied Plaintiffs equal access to a public forum in violation of the Fourteenth Amendment; and (3) the city's denial of access to the water bill violated Plaintiffs' rights under 42 U.S.C. § 1983.

On October 12, 1999 Plaintiffs re-filed their original complaint (Doc. 19), and then on October 29 re-filed their supplemental complaint under the heading "Amended Supplemental Complaint ..." (Doc. 22). On January 21, 2000 both parties filed Motions for Summary Judgment. Plaintiffs argue summary judgment is appropriate on Claims II-VII⁴ because Defendants: unconstitutionally denied access to a public forum, unconstitutionally used viewpoint discrimination, unconstitutionally used prior restraint, and unconstitutionally expended taxpayer resources. Defendants, on the other hand, contend summary judgment is appropriate because Plaintiffs have waived Claims II-IV, and since the message box is not a public forum and the March 1999 water bill message from the mayor was not an unconstitutional use of resources, the remaining claims should be dismissed.

B. Summary Judgment Standard

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c); See, Akin v. Ashland Chemical Co., 156 F.3d 1030, 1033 (10th Cir.1998) (citing Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The movant bears the burden of establishing the absence of a material question of fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The movant may meet this burden by showing that there is an absence of evidence to support the non-moving party's case. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

Once the movant meets his burden, the burden then shifts to the non-movant to demonstrate a genuine issue for trial on a material matter. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 890-891 (10th Cir.1991). The non-movant party may not rest on its pleadings, but must set forth specific facts showing there is a genuine issue for trial as to those matters for which it carries the burden of proof. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

Thus, the relevant inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The facts must be construed in favor of the non-movant and the court must consider inferences that can be drawn from those facts tending to show triable issues. Applied Genetics Int'l., Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990). The Court considers both motions in light of the above standards.

II. DISCUSSION

Essentially the dispute between the parties boils down to two issues: (1) whether the water bill's message box is a designated public forum; and (2) whether the city's decision to allow the mayor to submit a message advocating a position on a City Tax Initiative was an unconstitutional use of public funds. Current law dictates both questions be answered in the negative. Before addressing these issues, however the Court must set the parameters of the claims under consideration.

A. Scope of the Claims

1. Supplemental vs. Amended

After Plaintiffs filed their original complaint in March 1999, the parties agreed that Plaintiffs would file a supplemental complaint. Plaintiffs subsequently submitted the supplemental complaint in an attachment to a Stipulated Order from the Court allowing the addition (Doc. 18). Plaintiffs then re-filed the supplemental complaint on October 29, 1999 under the self-titled heading "Amended Supplemental Complaint." Defendants argue Plaintiffs waived claims II-IV from the original complaint because Plaintiffs' "Amended Supplemental Complaint" was an amended complaint rather than a supplemental complaint. Plaintiffs, on the other hand, argue that even though they titled the second supplemental complaint "Amended Supplemental Complaint," it was in fact a supplemental rather than an amended complaint.

If the complaint filed on October 29, 1999 was an amended complaint, as Defendants contend, then it superseded the original complaint. Wilson v. First Houston Investment Corp., 566 F.2d 1235, 1237-38 (5th Cir.1978) ("[a]s a general rule an amended complaint supersedes and replaces the original complaint."). Accordingly, since the original complaint no longer performs any function, all the claims Plaintiff alleged in the original complaint that Plaintiff did not re-allege in the amended complaint would be waived. 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1476(R15) (2d ed.1990); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987).

Clearly the first supplemental complaint —the complaint attached to the Stipulated Order—was a supplemental complaint. Doc. 18. Although it is not clear why Plaintiffs re-filed the supplemental complaint and why they chose to re-file it under a new heading,⁵ the only difference between the supplemental complaint attached to the Stipulated Order (Doc. 18) and the "Amended" supplemental complaint (Doc. 22) is the word "Amended" in the title. As there was no other change to the complaint itself and no evidence to suggest Plaintiffs intended to amend their supplemental complaint, the Court determines the "Amended" supplemental complaint is in fact and legal effect a supplemental complaint.⁶

B. Water Bill's Message Box

Plaintiffs contend the water bill message box is a designated public forum and they argue Defendants committed constitutional violations by...