Habecker v. Town of Estes Park, Colo.
| Decision Date | 14 March 2008 |
| Docket Number | No. 06-1515.,06-1515. |
| Citation | 518 F.3d 1217 |
| Parties | David HABECKER, Plaintiff-Appellant, v. TOWN OF ESTES PARK, COLORADO; Board of Trustees of the Town of Estes Park, Colorado; John Baudek, Mayor of the Town of Estes Park, Colorado; Vickie O'Connor, Town Clerk of the Town of Estes Park, Colorado; Greg White, Town Attorney for the Town of Estes Park, Colorado; Sue Doylen, Trustee of the Town of Estes Park, Colorado; Lori Jeffrey-Clark, Trustee of the Town of Estes Park, Colorado; Chuck Levine, Trustee of the Town of Estes Park, Colorado; Wayne Newsom, Trustee of the Town of Estes Park, Colorado; Bill Pinkham, Trustee of the Town of Estes Park, Colorado; Estes Park Citizens for Representative Government; Dewey Shanks, Member, Estes Park Citizens for Representative Government, Defendants-Appellees, and United States of America, Defendant-Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert R. Tiernan, Denver, Colorado, for Plaintiff-Appellant.
Steven J. Dawes (Sophia H. Tsai, with him on the brief), Light Harrington & Dawes, P.C., Denver, Colorado, for Defendants-Appellees.*
Lowell V. Sturgill, Jr., Attorney (Troy A. Eid, United States Attorney, Peter D. Keisler, Assistant United States Attorney, and Robert M. Loeb, Attorney, with him on the brief), United States Department of Justice, Washington, DC, for Defendant-Intervenor-Appellee.
Before LUCERO, HOLLOWAY, and TYMKOVICH, Circuit Judges.
David Habecker is a former Trustee of the Town of Estes Park, Colorado ("Town") and a self-described atheist. After he refused to stand and recite the Pledge of Allegiance at meetings of the Town Board of Trustees ("Board"), several Town citizens organized a successful campaign to recall him from office. Habecker then brought this federal civil rights suit against the Town and members of the recall committee, alleging violations of the First Amendment and Article VI of the Constitution. Concluding that Habecker lacked standing, that his claims were moot, and that he failed to allege a state action, the district court granted summary judgment to the defendants. We agree that we lack jurisdiction over all claims and AFFIRM.
Habecker was elected in 2000 to fill the seat of a deceased Trustee of the Town Board and was reelected to a full four-year term in 2002. As a Trustee, Habecker voted on routine matters such as budgets, appropriations, and hiring and firing of the Town Manager and Town Attorney. The Board consists of six Trustees and the Mayor of Estes Park, who sits as an ex officio member with a tiebreaking vote. Formal Board meetings are held twice a month and are open to the public.
Events giving rise to this litigation commenced on May 11, 2004, at the Estes Park Board meeting, when Mayor John Baudeck announced a new "policy" of opening meetings with the Pledge of Allegiance and asked that all present stand and recite the Pledge.1 Mayor Baudeck led the Pledge at the beginning of each Board meeting thereafter, and was continuing to do so at the time this litigation began.
Habecker joined in standing and reciting the Pledge at the May 11 meeting and several meetings thereafter, but declined to say the words "under God." By September, according to his deposition testimony, Habecker felt hypocritical reciting even this redacted version of the Pledge, considering that others were unlikely to see that he was omitting the words "under God." Thus, at the September 14, 2004, Board meeting, Habecker sat silently during the recitation of the Pledge. He explained at the meeting that he did so because of his objection to the use of the words "under God." Habecker continued to sit silently through the Pledge for the remainder of his service as a Trustee.
Upon learning of Habecker's refusal to recite the Pledge, three citizens of Estes Park, Dewey Shanks, Norman Pritchard, and Richard Clark,2 formed a committee to recall Habecker from office. Pursuant to Colo.Rev.Stat. § 31-4-501 et seq.,3 the Colorado recall statute, the group collected signatures and filed a petition for Habecker's recall with the Town Clerk, Vickie O'Connor. As required by § 31-4-502(1)(a)(I), the petition included a statement of grounds for the recall, which read:
Electors suffer a loss of confidence in Mr. Habecker's ability to represent citizen's [sic] pride, patriotism, and common decency. Prior to Town Board of Trustees meetings, he purposefully and irreverently chooses to publicly sit, facing away from the flag of the United States, during recital of the Pledge of Allegiance. His defiant behavior occurs because the phrase "... under God ..." offends him. He states he intends to continue until the United States Congress strikes the phrase from the Pledge of Allegiance.
Habecker failed to reveal this violation of his principles during campaigns for election. We consider this omission a deliberate tactic to assure voter ballots towards his election. We consider this tactic unethical and unacceptable.
We respect Mr. Habecker's right to free speech under the Constitution of the United States, but insist on maintenance of responsibility, accountability, leadership, respect for others, and high standards of public conduct. His vital beliefs regarding church/state personal conflicts were not revealed at the critical time of election. We do not regard these actions, omissions or motivations honorable [sic], and demand his removal from his elected position.
Pursuant to § 31-4-502(1)(c), O'Connor certified that the form of the petition complied with state law. After the petitioners had collected the requisite number of signatures O'Connor also determined that the petition met all requirements for a recall election and submitted it to the Board. See § 31-4-503(3)(a), (4). At its meeting on December 14, 2004, the Board received the petition and scheduled a recall election for February 15, 2005.
Habecker filed suit in the District of Colorado on January 28, 2005. Along with several state law claims not pursued on appeal, Habecker complained that: (1) The Pledge statute, 4 U.S.C. § 4, facially violates the Establishment Clause of the First Amendment; (2) The Pledge policy adopted by the Town violates the Establishment Clause; (3) The recall election would violate his rights to free speech and free exercise of religion under the First Amendment; (4) The Town had established the Pledge as a religious test for public office in violation of Article VI, Clause 3 of the Constitution; and (5) The Colorado recall statute is unconstitutional because it allows an official to be recalled based on constitutionally protected activities.
As defendants, Habecker named the Town, the Board, his five co-Trustees, the Mayor, the Town Clerk, and the Town Attorney (collectively "Town defendants"), as well as the three citizens who formed the recall committee and the committee itself ("recall committee defendants"). Habecker brought his federal claims directly under the First and Fourteenth Amendments and Article VI of the Constitution and under 42 U.S.C. § 1983. In addition to seeking the enjoining of the pending recall election, Habecker sought a judgment declaring the Pledge statute unconstitutional and the recall election unlawful.
Only the recall committee defendants opposed Habecker's motion for a preliminary injunction against the recall election. Because defendants failed to rebut Habecker's assertion that the recall would cause him irreparable harm, the district court granted Habecker's motion on February 10, 2005, enjoining the recall from taking place as scheduled on February 15.
On March 2, 2005, however, the district court granted the recall committee defendants' motion for reconsideration and dissolved the preliminary injunction on the ground that Habecker had failed to show state action depriving him of his rights as required by the Fourteenth Amendment and § 1983. The Board subsequently rescheduled the recall election, which was held on March 22, 2005. By a vote of 903 in favor of recall to 605 against, Habecker was recalled as a Trustee. Habecker claims that his stance on the Pledge was the predominant reason for his electoral defeat.
After the recall election, Habecker filed an amended complaint naming the Freedom From Religion Foundation, a nonprofit organization that "promote[s] the constitutional principle of separation of church and state," as a co-plaintiff.4 In addition to the relief claimed in the original complaint, the amended complaint requested reinstatement of Habecker's seat on the Board, monetary damages of his lost Trustee's salary and expenses incurred in opposing the recall, and an order "that any action of the Board of Trustees which depended on the presence or vote of [his] successor be held null and void."
The district court permitted the United States to intervene to defend the facial constitutionality of the Pledge statute. Thereafter, all parties filed cross motions for summary judgment. Concluding that Habecker lacked constitutional standing to challenge either the Pledge statute or the Board policy, that Habecker's request for a declaratory judgment was moot given the intervening election, and that Habecker failed to allege state action sufficient to support a claim under § 1983, the district court granted summary judgment to the defendants and intervenor the United States.5 Habecker timely appeals the grant of summary judgment as to three claims: (1) the Pledge statute facially violates the Establishment Clause, (2) the Board's recitation policy violates the Establishment Clause, and (3) the Board's policy violates Article VI.6 We have jurisdiction to hear his appeal under 28 U.S.C. § 1291.
We review orders granting summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. See Schulz v. City of Longmont, 465 F.3d 433, 437 (10th Cir. 2006). Summary judgment is appropriate when the record "show[s] that there is no genuine issue as to any...
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