Eagon Through Eagon v. City of Elk City, Okl., s. 94-6335

• Decision Date: 03 January 1996
• Docket Number: Nos. 94-6335,94-6336 and 95-6006,s. 94-6335
• Parties: Kristie EAGON, Through her parent Cindy EAGON; Tammy Hargues, through her parent Raymond E. Hargues; Melinda Hargues, through her parent Judy Hargues; Renee Anderson, through her parents Ted E. Anderson and Carolyn Anderson; Lee Mayberry, Plaintiffs-Appellees, Cross-Appellants, v. CITY OF ELK CITY, OKLAHOMA; George Easter, individually and in his official capacity as City Councilman; Don Wham, individually and in his official capacity as City Councilman; Basil Weatherly, individually and in his official capacity as City Councilman; William Brown, individually and in his official capacity as Mayor of Elk City; Guy Hylton, individually and in his official capacity as City Manager of Elk City; Nelda Burch, individually and in her official capacity as Chairman of Christmas in the Park, Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1480

72 F.3d 1480

Kristie EAGON, Through her parent Cindy EAGON; Tammy

Hargues, through her parent Raymond E. Hargues; Melinda

Hargues, through her parent Judy Hargues; Renee Anderson,

through her parents Ted E. Anderson and Carolyn Anderson;

Lee Mayberry, Plaintiffs-Appellees, Cross-Appellants, v. CITY OF ELK CITY, OKLAHOMA; George Easter, individually and in his official capacity as City Councilman; Don Wham,

individually and in his official capacity as City

Councilman; Basil Weatherly, individually and in his

official capacity as City Councilman; William Brown,

individually and in his official capacity as Mayor of Elk

City; Guy Hylton, individually and in his official capacity

as City Manager of Elk City; Nelda Burch, individually and

in her official capacity as Chairman of Christmas in the

Park, Defendants-Appellants, Cross-Appellees.

Nos. 94-6335, 94-6336 and 95-6006.

United States Court of Appeals, Tenth Circuit.

Jan. 3, 1996.

Micheal Salem, Norman, Oklahoma (Lanita Henricksen of Henricksen & Henricksen, El Reno, Oklahoma, with him on the brief) for Plaintiffs-Appellees/Cross-Appellants.

Timothy D. Eisel (Jim T. Priest with him on the brief) of McKinney, Stringer & Webster, P.C., Oklahoma City, Oklahoma, for Defendants-Appellants/Cross-Appellees.

Before ANDERSON, HOLLOWAY, and LUCERO, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellants the City of Elk City, George Easter, Don Wham, Basil Weatherly, William Brown, Guy Hylton, and Nelda Burch (collectively defendants) appeal a summary judgment in favor of plaintiff-appellees Kristie Eagon, Tammy Hargues, Melinda Hargues, Renee Anderson, and Lee Mayberry (collectively plaintiffs), upholding their First Amendment free speech claim, inter alia, (No. 94-6335). Plaintiffs cross-appeal from an order of the district court holding that the individual defendants were entitled to qualified immunity from damages, while injunctive and declaratory relief was granted (No. 94-6336). Defendants also appeal the district court's award of attorney fees in favor of plaintiffs (No. 95-6006). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

I

Ackley Park is a public park in Elk City, Oklahoma. App. at 53. Elk City has given permission for "Christmas in the Park," an event which has been held annually for over seven years in Ackley Park. At Christmas in the Park, churches, individuals, schools, businesses, civic and community groups, and clubs have been allowed to erect displays. Id. at 54. In December 1992 plaintiff Mayberry was instructed to take down his display for the Beckham County Teenage Republican Club by Nelda Burch because his sign "conveyed a partisan message." Id. The parties agree that Mayberry's display "did not contain obscenity or speech inciting immediate unlawful action or fighting words." Id. They also agree that many other messages, including those of "a religious or spiritual nature," are allowed. Id.

In November 1993 the city council of Elk City approved the following rules for the 1993 Christmas in the Park:

'CHRISTMAS IN THE PARK' committee, operating under the non-profit organization of the Western Oklahoma Historical Soceity [sic], has been granted permission by the City of Elk City to organize and make all arrangements and decisions for Christmas lighting, displays and placement in the City Park. The project may encompass the entire park area.

The City grants permission with the understaning [sic] this is a project intended to be a City wide effort for the purpose of presenting a scenic holiday beauty for the enjoyment of the community as well as a possible economic boost to the City.

The City further understands that the committee will encourage participation by individuals, schools, churches, businesses, civic and community clubs or groups of non-partisan origin from the Elk City area.

Commercialism in the park is discouraged but will be left to the discretion and decision of the committee.

Participation credit or memorial signs shall not be larger than 15 inches high and 24 inches wide.

Dean and Nelda Burch are recognized as Chairmen of this event.

City Park Commission to be oversight of all activities in the Park associated with "Christmas in the Park", with final approval to rest with the City Manager.

PAST [sic] AND APPROVED this 1st day of November, 1993.

App. at 326.

In November 1993, the Beckham County Teenage Republican Club (the Club), to which plaintiffs belonged, was not allowed a space in the park to place its display. Id. at 55. The display included two panels showing Joseph, Mary and Jesus on the right panel and the three wise men on the left panel with the phrase "It Came to Pass in the City of David a Savior was born" written across the two panels. There was a "credit sign" at the bottom which read "Merry Christmas from the Beckham County Teenage Republican Club." It is this sign which is at issue in this case.

Defendant Nelda Burch testified that the reason the Club's sign was excluded was that it was "partisan in nature." App. at 55. As an alternative to placing their display in Christmas in the Park, the city manager offered the Club space in Downtown Elk City where other Christmas displays were placed. The Club did not avail itself of this alternative. Instead plaintiffs brought this suit under 42 U.S.C. Sec. 1983, alleging that defendants violated their rights of free speech and equal protection under the First and Fourteenth Amendments. ¹ They sought injunctive and declaratory relief, damages, and attorney fees.

On December 3, 1993, a hearing was held on plaintiffs' request for a preliminary injunction. On December 6 the district court granted a preliminary injunction. The parties subsequently filed cross-motions for summary judgment. On June 22, 1994, the judge granted summary judgment for plaintiffs, but held that the individual defendants were entitled to qualified immunity from damages. Id. at 359-69.

On August 9, 1994, the judge entered a declaratory judgment in favor of plaintiffs The district judge also enjoined defendants from excluding plaintiffs "from any participation or presentation in the annual program 'Christmas in the Park' or any like or similar successor program, based upon the content of the expression used in such participation or presentation by Plaintiffs or their successors as members of the Teenage Republican Club of Beckham County." Id. at 371. The judge awarded plaintiffs damages in the amount of one dollar against Elk City and the individual defendants in their official capacities, together with attorney fees, but held that the individual defendants were entitled to qualified immunity from damages in their individual capacities. Defendants appeal from the adverse judgment. Plaintiffs cross-appeal from the grant of qualified immunity for the individual defendants.

                and against defendants, stating that "the actions of the Defendants in excluding Plaintiffs from participation in the program 'Christmas in the Park' constituted a violation of the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States."   App. at 370-71 (emphasis in original)
                

II

We review a grant of summary judgment de novo, applying the same legal standard as the trial court. Bowdry v. United Airlines, Inc., 58 F.3d 1483, 1486 (10th Cir.1995). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We view the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Bowdry, 58 F.3d at 1486.

Our review of the record, the orders of the district judge, and the parties' submissions reveal that there are no material facts in dispute as to the constitutional claims. Therefore the principal issue for us is the legal question whether the exclusion of plaintiffs' sign violated their rights to free speech and equal protection, as the district judge concluded.

A Was Plaintiffs' Sign Protected Speech?

The First Amendment provides in part that "Congress shall make no law ... abridging the freedom of speech...." This right has long been made applicable to the states through the Fourteenth Amendment. See City of Ladue v. Gilleo, --- U.S. ----, ---- n. 1, 114 S.Ct. 2038, 2040 n. 1, 129 L.Ed.2d 36 (1994) (citing Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925)).

Defendants first argue that plaintiffs' credit sign is not protected speech: "[s]ince [plaintiffs'] proposed greeting was not intended to be 'communicative' in the First Amendment sense of the term, their greeting is not 'protected speech.' " Appellants' Brief at 6. Defendants cite Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam), and ACORN v. City of Tulsa, 835 F.2d 735 (10th Cir.1987), for the proposition that "there must be both intent and perception [that a message is being conveyed] in order for conduct to be considered 'protected speech.' " Appellants' Brief at 6 (emphasis in original). Defendants contend that although plaintiffs' conduct was perceived to display a partisan message, there was no intent to make a political statement. They point to testimony by plaintiffs Mayberry and Eagon that they were not trying to convey or communicate in any way a message from the Republicans or to make a political statement. App. at 126, 151-52. Therefore, the argument goes, the plaintiffs' sign is not protected speech under the First Amendment.

Defendants misread Spence and ACORN. Both cases were concerned with expressive conduct--non-written, non-oral conduct which may be entitled to protection as speech under the First Amendment. In Spence, the appellant had hung an American flag, which he owned, with a peace symbol taped on it, upside down from the window of his apartment as a protest against the invasion of Cambodia and the...