Gallagher v. City of Clayton

• Decision Date: 09 December 2011
• Docket Number: No. 4:11-CV-392 CAS,4:11-CV-392 CAS
• Parties: ARTHUR GALLAGHER, Plaintiff, v. CITY OF CLAYTON, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

ARTHUR GALLAGHER, Plaintiff,

v.CITY OF CLAYTON, et al., Defendants.

No. 4:11-CV-392 CAS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: December 9, 2011

MEMORANDUM AND ORDER

This matter is before the Court on plaintiff Arthur Gallagher's motion for preliminary injunction and defendants' motion for judgment on the pleadings. For the following reasons, the Court will grant in part and deny without prejudice in part defendants' motion for judgment on the pleadings. The Court will enter judgment in favor of defendants on plaintiff's federal constitutional claims (Counts I-V) and dismiss without prejudice plaintiff's state law claim (Count VI). Finally, the Court will deny as moot plaintiff's motion for preliminary injunction.

I. Background

Plaintiff is a resident of the City of Clayton (the "City") and "ecstatically enjoys smoking tobacco products" while in the City's parks. (Compl. 3). On August 24, 2010, the City's Board of Alderman unanimously passed Ordinance No. 6118, which bans outdoor smoking on City "grounds, parks, playgrounds . . . playing fields, parking lots and parking structures." Clayton, Mo., Code of Ordinances ch. 215, art. XIII, § 215.681. Plaintiff challenges the outdoor smoking ban, asserting five federal and one state law theories:

1. The smoking ban denies smokers substantive due process rights because the health threat of secondhand smoke from outdoor tobacco use is de minimis, and therefore the ban fails rational basis review;

2. The smoking ban denies smokers substantive due process rights because smoking is a fundamental right and the ban is not narrowly tailored to protect that right, and therefore the ban fails strict scrutiny review;

3. The smoking ban denies smokers equal protection under the law because they are a quasi-suspect class due to discrimination and second class categorization, and therefore the ban fails intermediate scrutiny review;

4. The smoking ban denies smokers substantive due process rights because its purpose is to express animus toward smokers, and therefore the ban fails rational basis review;

5. The smoking ban is arbitrary and capricious because it delegates to the City Manager the authority to ban outdoor smoking at festivals and events, but fails to provide standards for determination of his decisions; and

6. The smoking ban denies smokers their Missouri Constitution liberty and pursuit of happiness rights, and therefore the ban fails review under the Missouri Constitution.

While the Court credits plaintiff for his enthusiastic, novel and, at times, entertaining argument in favor of his smoking rights, the Court does not find that plaintiff has stated a plausible claim to relief. To the contrary, the Court finds the pleadings leave no dispute as to any material facts, and defendants are entitled to judgment as a matter of law.

II. Standard of Review

Federal Rule of Civil Procedure 12(c) requires a court to "accept as true all factual allegations set out in the complaint" and to "construe the complaint in the light most favorable to the plaintiff, drawing all inferences in [his] favor." Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009) (quoting Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006)). A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is determined by the samestandards that are applied to a motion under Rule 12(b)(6). Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3 (8th Cir. 2010); Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (internal citations omitted) (quoting Twombly, 550 U.S. at 557).

III. Discussion

A. Plaintiff's Substantive Due Process Claims

In Count II, plaintiff brings a claim for "substantive due process, bodily integrity, liberty and ancient and modern cultural traditions." Compl. ¶¶ 84-103. Plaintiff argues that the Court should find smoking to be a fundamental constitutional right because "it is part of ancient American tradition." Pl.'s Reply to Defs.' Mem. in Opp'n to Pl.'s Mot. for Prelim. Inj. and Pl.'s Mem. in Opp'n to Defs.' Mot. for J. on Pleadings [Doc. 24] at 13.¹ Plaintiff concedes that no court has found in favor of his position, but asks the Court "to make the case and to try to change the law." Id. The Court respectfully declines.

The Supreme Court has noted that it must "exercise the utmost care whenever [it is] asked to break new ground" in the field of fundamental rights, which is precisely what plaintiff is asking the Court to do. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citation omitted). The Court agrees with the Eighth Circuit and lower federal courts that smoking does not give rise to a fundamental right protected by the United States Constitution. Steele v. Beltrami, Minn., 238 F. App'x 180, 181 (8th Cir. 2007); Castaways Backwater Café, Inc. v. Marstiller, 2006 WL 2474034, *4 (M.D. Fla. Aug. 25, 2006) ("While tobacco smoking may have a long history, both liberty and justice will continue to exist if smoking in public restaurants is curtailed or precluded."); American Legion Post #149 v. Washington State Dep't of Health, 192 P.3d 306, 322 (Wash. 2008) (finding smoking is not a fundamental right); see also Defs.' Suggestions in Opp'n to Pl.'s Mot. for Prelim. Inj. and in Supp. of Mot. for J. on Pleadings [Doc. 16] at 15-16.²

While smoking might be part of ancient American tradition, plaintiff's asserted right to smoke outdoors in a City park is not one of "those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Glucksberg, 521 U.S. at 720-21 (internal citations and quotation marks omitted). The Court finds that liberty and justice would exist if smoking in the City's public parks was sacrificed. The Court finds that no fundamental right is at stake, and will apply the less restrictive "rational basis" analysis to plaintiff's substantive due process claim. See infra Part III.C.

B. Plaintiff's Equal Protection Claim

In Count III, plaintiff alleges the City's smoking ordinance violates his equal protection rights. Plaintiff states that the smoking ban denies his Fourteenth Amendment right to equal protection "because smokers are a quasi-suspect class due to discrimination and second class categorization, and hence the ban fails intermediate scrutiny review." Compl. at 3-4, ¶¶ 109-110.

The Equal Protection Clause prohibits a state from "deny[ing] . . . any person within its jurisdiction equal protection of the laws." U.S. Const. amend XIV, § 1. The amount of scrutiny applied by the Court in addressing an equal protection challenge turns on the type of classification the law creates. Unless the classification is based on a suspect or quasi-suspect class, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). This is true "even if the law seems unwise or works to the disadvantages of a particular group, or if the rationale for it seems tenuous." Romer v. Evans, 517 U.S. 620, 632 (1996) (citation omitted).

The Court does not find it facially plausible that smokers are a quasi-suspect class. See Compl. at ¶ 109. Plaintiff argues that smokers have been subject to a history of discrimination, but his only citation or support for this proposition is the Internet website for "Dirt Cheap," a local discount retailer of beer, wine, liquor, cigarettes, and tobacco products. On its website, Dirt Cheap states that it is "truly the last refuge of the persecuted smoker." Id. at ¶ 109(b) and n.62 (emphasis in original). Citation to an advertising slogan of a local cigarette retailer alone cannot establish that smoking is a quasi-suspect classification under the Equal Protection Clause. The Court has found no support for plaintiff's proposition that smoking is a quasi-suspect classification, and therefore findsplaintiff's claim to intermediate scrutiny implausible. Like plaintiff's substantive due process claim, therefore, the Court will apply the less restrictive "rational basis" analysis to plaintiff's equal protection claim.

C. Rational Basis Review

In Count I, plaintiff alleges a claim for "rational basis test." Compl. at ¶¶ 42-83. Rational basis review, "a paradigm of judicial restraint," does not provide "a license for courts to judge the wisdom, fairness, or logic of legislative choices." FCC v. Beach Commc'ns, Inc.. 508 U.S. 307, 313-14 (1993) (citation omitted). The question is simply whether the challenged legislation is rationally related to a legitimate state interest. Heller v. Doe, 509 U.S. 312, 320 (1993). Under this deferential standard, a legislative classification "is accorded a strong presumption of validity," and "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Id. at 319-20...