Freedom from Religion Foundation, Inc. v. Romer

• Decision Date: 27 June 1996
• Docket Number: No. 95CA0433,95CA0433
• Citation: 921 P.2d 84
• Parties: The FREEDOM FROM RELIGION FOUNDATION, INC., a Wisconsin Nonprofit Corporation; The Colorado Chapter of the Freedom from Religion Foundation, Inc.; Glenn V. Smith; Lora J. Attwood; Robert A. Attwood; Jeff Baysinger; Robert H. Fenn; and Lee Whitfield, Plaintiffs-Appellants, v. Roy ROMER, Governor of the State of Colorado; Gale Norton, Attorney General of the State of Colorado; Gail Schoettler, Treasurer of the State of Colorado; Ken L. Salazar, Executive Director of the Colorado Department of Natural Resources; James Robb, Patricia McClearn, Clark Scriven, Kathleen Farley, and Jose Trujillo, members of the Board of Parks and Outdoor Recreation of the State of Colorado; Laurie Mathews, Director of the Division of Parks and Outdoor Recreation of the State of Colorado; Patrick Ahlstrom, Executive Director of the Department of Public Safety of the State of Colorado; Dr. A. Ray Chamberlain, Executive Director of the Department of Transportation of the State of Colorado; The City and County of Denver, Colorado; Wellington Webb, Mayor of the City and County of Denver, Colorado; Bruce Alexander, Manager of the Department of Parks and Recreation of the City and County of Denver, Colorado; The Board of Parks and Recreation of the City and County of Denver, Colorado; Christine DeRose, President of the Board of Parks and Recreation of the City and County of Denver, Colorado; Beth McCann, Manager of the Department of Safety of the City and County of Denver, Colorado; Michael Musgrave, Manager of the Department of Public Works of the City and County of Denver, Colorado; Patricia Schwartzberg, Manager of the Department of Revenue of the City and County of Denver, Colorado; The City Council of the City and County of Denver, Colorado; The County of Arapahoe, Colorado; Jeannie Jolly, John Nicholl and Thomas Eggert, Arapahoe County Commissioners; Dorothy Vogt, Treasurer of the County of Arapahoe; and Patrick Sullivan, Sheriff of the County of Arapahoe, Defendants-Appellees. . IV
• Court: Colorado Court of Appeals

Page 84

921 P.2d 84

The FREEDOM FROM RELIGION FOUNDATION, INC., a Wisconsin Nonprofit Corporation; The Colorado Chapter of the Freedom from Religion Foundation, Inc.; Glenn V. Smith; Lora J Attwood; Robert A. Attwood; Jeff Baysinger; Robert H Fenn; and Lee Whitfield, Plaintiffs-Appellants, v. Roy ROMER, Governor of the State of Colorado; Gale Norton Attorney General of the State of Colorado; Gail Schoettler Treasurer of the State of Colorado; Ken L. Salazar, Executive Director of the Colorado Department of Natural Resources; James Robb, Patricia McClearn, Clark Scriven, Kathleen Farley, and Jose Trujillo, members of the Board of Parks and Outdoor Recreation of the State of Colorado; Laurie Mathews, Director of the Division of Parks and Outdoor Recreation of the State of Colorado; Patrick Ahlstrom, Executive Director of the Department of Public Safety of the State of Colorado; Dr. A. Ray Chamberlain, Executive Director of the Department of Transportation of the State of Colorado; The City and County of Denver, Colorado; Wellington Webb, Mayor of the City and County of Denver, Colorado; Bruce Alexander, Manager of the Department of Parks and Recreation of the City and County of Denver, Colorado; The Board of Parks and Recreation of the City and County of Denver, Colorado; Christine DeRose, President of the Board of Parks and Recreation of the City and County of Denver, Colorado; Beth McCann, Manager of the Department of Safety of the City and County of Denver, Colorado; Michael Musgrave, Manager of the Department of Public Works of the City and County of Denver, Colorado; Patricia Schwartzberg, Manager of the Department of Revenue of the City and County of Denver, Colorado; The City Council of the City and County of Denver, Colorado; The County of Arapahoe, Colorado; Jeannie Jolly, John Nicholl and Thomas Eggert, Arapahoe County Commissioners; Dorothy Vogt, Treasurer of the County of Arapahoe; and Patrick Sullivan, Sheriff of the County of Arapahoe, Defendants-Appellees.

No. 95CA0433.

Colorado Court of Appeals, Div. IV.

June 27, 1996.

Robert R. Tiernan, Denver, for Plaintiffs-Appellants.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Laura M. Maresca, Assistant Attorney General, Patricia Powell, Assistant Attorney General, Denver, for Defendants-Appellees Roy Romer, Governor of the State of Colorado, Gale Norton, Attorney General of the State of Colorado; Gail Schoettler, Treasurer of the State of Colorado; Ken L. Salazar, Executive Director of the Colorado Department of Natural Resources; James Robb, Patricia McClearn, Clark Scriven, Kathleen Farley, and Jose Trujillo, members of the Board of Parks and Outdoor Recreation of the State of Colorado; Laurie Mathews, Director of the Division of Parks and Outdoor Recreation of the State of Colorado; Patrick Ahlstrom, Executive Director of the Department of Public Safety of the State of Colorado; Dr. A. Ray Chamberlain, Executive Director of the Department of Transportation of the State of Colorado.

Daniel E. Muse, City Attorney, Andrew L. Weber, Assistant City Attorney, Maria Kayser, Assistant City Attorney, Office of the City Attorney, Denver, for Defendants-Appellees The City and County of Denver, Colorado; Wellington Webb, Mayor of the City and County of Denver, Colorado; Bruce Alexander, Manager of the Department of Parks and Recreation of the City and County of Denver, Colorado; The Board of Parks and Recreation of the City and County of Denver, Colorado; Christine DeRose, President of the Board of Parks and Recreation of the City and County of Denver, Colorado; Beth McCann, Manager of the Department of Safety of the City and County of Denver, Colorado; Michael Musgrave, Manager of the Department of Public Works of the City and County of Denver, Colorado; Patricia Schwartzberg, Manager of the Department of Revenue of the City and County of Denver, Colorado; The City Council of the City and County of Denver, Colorado.

Kathryn L. Schroeder, County Attorney, L. Cary Unkelbach, Assistant County Attorney, John E. Bush, Jr., Assistant County Attorney, Littleton, for Defendants-Appellees The County of Arapahoe, Colorado; Jeannie Jolly, John Nicholl and Thomas Eggert, Arapahoe County Commissioners; Dorothy Vogt, Treasurer of the County of Arapahoe; and Patrick Sullivan, Sheriff of the County of Arapahoe.

Opinion by Judge DAVIDSON.

In this action for a permanent injunction, declaratory judgment, and damages for actions taken by state, City & County of Denver, and Arapahoe County officials (officials), The Freedom from Religion Foundation, Inc., and six individual plaintiffs appeal from a judgment of the trial court dismissing their complaint pursuant to C.R.C.P. 12(b). We affirm.

Plaintiffs' complaint arose from the Roman Catholic Pope's visit to Denver in August 1993 for World Youth Day (WYD). Plaintiffs allege that various actions of the officials, including authorizing holding religious services at a state park, temporary closure of the park to the public, and use of state funds to facilitate the visit constituted promotion of religion in violation of the First and Fourteenth Amendments and Colo. Const. art. II, § 4. After the event, plaintiffs sought injunctive relief and damages pursuant to 42 U.S.C. § 1983 (1988), and a declaratory judgment, pursuant to the Uniform Declaratory Judgments Act, § 13-51-101, et seq., C.R.S. (1987 Repl.Vol. 6A).

The officials filed a motion to dismiss under C.R.C.P. 12(b) for lack of subject matter jurisdiction, failure to join an indispensable party (the event organizer), and failure to state a claim upon which relief can be granted. The trial court granted the motion, determining, inter alia, that the request for injunctive relief was moot and that the officials had qualified immunity from suit. This appeal followed.

I.

Plaintiffs contend that their claims should not be dismissed as moot because their requests for relief are aimed at preventing similar conduct by government officials with regard to future religious functions. Plaintiffs argue that the officials' conduct in regard to WYD must be declared unlawful and future conduct enjoined because similar conduct is likely to recur and will escape review. We disagree.

Initially, we note that there is no contention that plaintiffs' claims for damages under 42 U.S.C. § 1983 are moot and only their claims for injunctive and declaratory relief are considered here. See Committee for First Amendment v. Campbell, 962 F.2d 1517 (10th Cir.1992) (dismissal of injunctive relief claims for mootness did not warrant dismissal of damages claims).

Appellate courts will not generally render opinions on the merits of appeals when issues presented in litigation become moot because of subsequent events. A case is moot when a judgment would have no practical effect upon an existing controversy, American Drug Store, Inc. v. Denver, 831 P.2d 465 (Colo.1992), or would not put an end to any uncertainty. Crowe v. Wheeler, 165 Colo. 289, 439 P.2d 50 (1968) (action seeking declaratory judgment as to the qualification of voters for election that has already occurred).

Issues capable of repetition, yet evading review, may, however, be addressed on the merits when the case is otherwise moot. See Humphrey v. Southwestern Development Co., 734 P.2d 637 (Colo.1987).

An issue is capable of repetition, yet evades review when the "time required to complete the legal process will necessarily render each specific challenge moot." Rocky Mountain Ass'n of Credit Management v. District Court, 193 Colo. 344, 346, 565 P.2d 1345, 1346 (1977); see also Urevich v. Woodard, 667 P.2d 760 (Colo.1983) (declaratory judgment regarding election petitions appropriate when otherwise moot issue is capable of repetition yet would evade review). When the underlying substantive issue is capable of repetition but will evade review, it is not moot even though the chance of recurrence is remote. Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, 620 P.2d 1051 (Colo.1980).

Here, plaintiffs seek a declaration "that the acts and practices [regarding WYD] complained of herein were unlawful." They also seek to enjoin defendants:

I. ... from authorizing or allowing public property to be used for conducting Roman Catholic Mass or any other formal religious ceremony;

II. ... from authorizing the use of public property for conducting confessions, baptisms, or other sacramental or religious activities;

III. ... from expending public funds to support the holding of any religious ceremony whether on public or private property;

IV. ... from expending public funds to promote religious activities of any kind;

V. ... from acting in concert with others to promote religion or religious activities; [and]

VI. ... from using public funds to make gifts to religious entities or persons....

First, to the extent that plaintiffs' claims for injunctive and declaratory relief specifically seek to redress allegedly unconstitutional actions taken by officials in conjunction with WYD events--events that have already occurred--we have little difficulty in concluding that these claims are moot.

When, as here, the conduct sought to be redressed by declaratory or injunctive relief is peculiar to a particular event that has already occurred, the occurrence of the event will moot the controversy. This is because neither a declaration or injunction as to these past events will have any practical legal effect on the dispute. See W-470 Concerned Citizens v. W-470 Highway Authority, 809 P.2d 1041 (Colo.App.1990). Also, plaintiffs here do not seek a declaration as to any general statute, ordinance, or regulation of the government entities that might be applied in future situations. Cf. Russell v. City of Central, 892 P.2d 432 (Colo.App.1995) (declaratory judgment not moot when validity of amendment of general application is challenged).

Furthermore, to the extent that...