Gardner v. Mutz

• Decision Date: 22 June 2020
• Docket Number: No. 19-10461,19-10461
• Parties: Wade Steven GARDNER, Mary Joyce Stevens, Randy Whittaker, In his Official Capacity at Southern War Cry, Veterans Monuments of America, Inc., Andy Strickland, US Army Ret, President, Phil Walters, In his Official Capacity as 1st Lt. Commander of the Judah P. Benjamin Camp # 2210 Sons of Confederate Veterans, Ken Daniel, In his Official Capacity as Director of Save Southern Heritage, Inc. Florida, Randy Whittaker, Individually, Plaintiffs - Appellants, v. William MUTZ, In his Official Capacity as Mayor of the City of Lakeland, Florida, Tony Delgado, In his Official Capacity as Administrator of the City of Lakeland, Florida, Don Selvege, In his Official Capacity as City of Lakeland, Florida Commissioner, Justin Troller, In his Official Capacity as City of Lakeland, Florida Commissioner, Phillip Walker, In his Official Capacity as City of Lakeland, Florida Commissioner, Florida Secretary of State, et al., Defendants - Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

962 F.3d 1329

Wade Steven GARDNER, Mary Joyce Stevens, Randy Whittaker, In his Official Capacity at Southern War Cry, Veterans Monuments of America, Inc., Andy Strickland, US Army Ret, President, Phil Walters, In his Official Capacity as 1st Lt. Commander of the Judah P. Benjamin Camp # 2210 Sons of Confederate Veterans, Ken Daniel, In his Official Capacity as Director of Save Southern Heritage, Inc. Florida, Randy Whittaker, Individually, Plaintiffs - Appellants,

v.William MUTZ, In his Official Capacity as Mayor of the City of Lakeland, Florida, Tony Delgado, In his Official Capacity as Administrator of the City of Lakeland, Florida, Don Selvege, In his Official Capacity as City of Lakeland, Florida Commissioner, Justin Troller, In his Official Capacity as City of Lakeland, Florida Commissioner, Phillip Walker, In his Official Capacity as City of Lakeland, Florida Commissioner, Florida Secretary of State, et al., Defendants - Appellees.

No. 19-10461

United States Court of Appeals, Eleventh Circuit.

June 22, 2020

David Rhodes McCallister, Wesley Chapel, FL, David Rhodes McCallister, David R. McCallister, Attorney at Law, Dade City, FL, for Plaintiffs-Appellants.

Mark Nelson Miller, Kristie Hatcher-Bolin, GrayRobinson, PA, Lakeland, FL, for Defendants-Appellees William Mutz, Tony Delgado, Don Selvege, Justin Troller, Phillip Walker, and Antonio Padilla.

Ashley E. Davis, Florida Department of State, Ashley E. Davis, Ashley Moody, Office of the Attorney General, Tallahassee, FL, for Defendant-Appellee.

Robert Michael Daisley, Law Office of Robert Michael Daisley, Tampa, FL, for Amicus Curiae Service.

Jack Buster Hinton, Jr., Hinton & Associates, Montgomery, AL, for Amicus Curiae Foundation for Moral Law, Inc.

Before MARTIN, NEWSOM, and O'SCANNLAIN,^* Circuit Judges.

NEWSOM, Circuit Judge:

This appeal arises from a lawsuit filed by a group of individuals and organizations who object to the City of Lakeland's decision to relocate a Confederate monument from one city park to another. As relevant here, the plaintiffs contend that the relocation violates their rights under the First Amendment's Free Speech Clause and the Fourteenth Amendment's Due Process Clause. The district court rejected the plaintiffs’ First Amendment claim on the merits and dismissed it with prejudice; the court dismissed the plaintiffs’ due process claim without prejudice on the ground that they lacked the requisite standing to pursue it.

Following the district court's decision, the plaintiffs failed to obtain (or even seek) a stay, and, by the time the case reached us the City had proceeded to relocate the monument. On appeal, the plaintiffs challenge the dismissal of their complaint, and the defendants respond by contesting the plaintiffs’ standing to sue, defending the district court's decision on the merits, and contending that the monument's relocation has rendered the case moot. We hold that the plaintiffs lack standing to pursue either their First Amendment claim or their due process claim. Accordingly, we will vacate and remand the with-prejudice dismissal of the plaintiffs’ First Amendment claim, with instructions that the district court should dismiss without prejudice for lack of jurisdiction, and we will affirm the district court's without-prejudice dismissal of the plaintiffs’ due process claim.

I

A

The plaintiffs in this case are Wade Steven Gardner, a citizen-taxpayer of Lakeland; Randy Whittaker, a citizen-taxpayer of Polk County who has, he says, "Confederate Dead in his family lineage"; Southern War Cry, an organization that Whittaker administers; the Judah P. Benjamin Camp #2210 Sons of Confederate Veterans, a subdivision of the nonprofit Florida Division Sons of Confederate Veterans, Inc., whose self-described purpose is to " ‘vindicate the cause’ for which the Confederate Veteran fought"; Veterans Monuments of America, Inc., a nonprofit entity dedicated to protecting and preserving war memorials; Mary Joyce Stevens, a Georgia resident and a current member and past president of a chapter of the United Daughters of the Confederacy; and Save Southern Heritage, Inc., a South Carolina nonprofit formed to "preserve the history of the south for future generations."

Most of the defendants in this case are affiliated either with the City of Lakeland or the State of Florida. The City-related defendants are William Mutz, Lakeland's Mayor; Don Selvage, Justin Troller, and Phillip Walker, Lakeland City Commissioners; and Tony Delgado, the City Manager. The plaintiffs also sued Michael Ertel, the Florida Secretary of State,¹ and Antonio Padilla, the President of Energy Services & Products Corporation, which had submitted a proposal for relocating the monument.

This case centers on a memorial "cenotaph"² that is dedicated to Confederate soldiers who died during the Civil War and is—or more accurately, was —located in Lakeland's Munn Park, which is a part of a nationally registered historic district. In 1908, the City granted the United Daughters of the Confederacy's petition to erect the monument in Munn Park. The cenotaph is 26 feet tall, weighs about 14 tons, and is engraved with the words "Confederate Dead," a poem, and images of Confederate flags. More recently, the City began to receive complaints about the monument, and in December 2017 the City Commission agreed to start the process of removing it. In May 2018, the Commission voted to relocate the cenotaph from Munn Park to Veterans Park, which is located outside Lakeland's historic district. The Commission initially directed that all relocation costs be paid by private donations, but it later agreed to permit the use of funds from Lakeland's red-light-camera program to complete the project.

B

In November 2018, the plaintiffs sued to prevent the cenotaph's relocation. Of their complaint's seven counts, only two are at issue here: Count 1 alleged a violation of the plaintiffs’ First Amendment rights—in particular, the plaintiffs complained, the City "ha[d] abridged [their] right to free speech ... by deciding to remove the [c]enotaph which communicated minority political speech in a public forum." Count 4 alleged a violation of the Due Process Clause—specifically, the plaintiffs asserted that the City failed "to provide [them] and other like-minded Florida and American citizens due process, including reasonable notice, an opportunity to be heard and a hearing before a neutral arbiter, before removing the Historic Munn Park Cenotaph."³ The plaintiffs requested both a declaration that the City's actions violated the Constitution and an injunction to prevent the monument's relocation.

The defendants moved to dismiss the plaintiffs’ suit. In their motion, Mutz, Delgado, Selvage, Troller, and Walker argued that the plaintiffs lacked standing, that they had failed to state a claim for which relief could be granted, and that, in any event, their claims were barred by legislative and/or qualified immunity. In particular, the defendants contended that the plaintiffs hadn't suffered an "injury in fact" because they didn't have a "cognizable claim arising out of the City's relocation or removal of a monument on City property." More particularly still, they argued that the cenotaph was a form of government speech and that, accordingly, the plaintiffs didn't have a "Free Speech claim with respect to [it] or any due process rights premised on [its] removal." Ertel and Padilla moved to dismiss on similar grounds.

The district court granted the defendants’ motions. With respect to the plaintiffs’ First Amendment claim, the court opted to treat the City officials’ motion to dismiss for lack of subject-matter jurisdiction as a motion to dismiss for failure to state a claim; for support, the court invoked the proposition that when a defendant's jurisdictional challenge "implicates an element of the cause of action, courts are to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case." Dist. Ct. Order at 9 (internal quotation marks omitted) (quoting Scarfo v. Ginsberg , 175 F.3d 957, 965 (11th Cir. 1999) (Barkett, J., dissenting)). Having refocused the inquiry from the plaintiffs’ standing to the merits of their claim, the district court held that the cenotaph is not private expression but rather a form of government speech and, accordingly, that the "[p]laintiffs d[id] not have a legally protected interest in that speech" and that "their First Amendment claim fail[ed] as a matter of law." Id. at 9–11. The court rejected the plaintiffs’ due process claim on standing grounds, holding that "[e]ven if [p]laintiffs had a protected liberty or property interest in the [c]enotaph's placement in Munn Park," their alleged injuries were "not sufficiently particularized" for Article III purposes. Id. at 12–13 (internal quotation marks and citation omitted).⁴ The district court alternatively held that the plaintiffs had failed to state a cognizable due process claim because they "lack[ed] a liberty interest in the [c]enotaph and thus [could not] state a procedural due process claim based on the memorial's relocation." Id. at 15.⁵

The plaintiffs promptly appealed the district court's dismissal order to this Court. For whatever reason, though, they failed to seek a stay pending appeal to prevent the relocation of the cenotaph while the case wound

its way to us, and, in the meantime, the City of Lakeland proceeded to move the monument from Munn Park to Veterans Park. In light of the cenotaph's relocation, the defendants argue that because "the action [the plaintiffs] sought to prevent has come to pass, the case is now moot." Br. of Appellees at 12.

II

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Accordingly, we have "a special obligation to satisfy [ourselves] ... of [our] own jurisdiction" before proceeding to the merits of an appeal. Steel Co. v. Citizens for a...