Harris v. City of Wichita, Sedgwick County, Kan.

• Decision Date: 29 November 1993
• Citation: 1996 WL 7963,74 F.3d 1249
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1249

74 F.3d 1249

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

John R. HARRIS and his wife, Virginia L. Harris; Charles W Harris and his wife, Jane C. Harris; and Trail N Sail, Inc., Plaintiffs-Appellants, v. CITY OF WICHITA, SEDGWICK COUNTY, KANSAS; and Board of County Commissioners of Sedgwick County, Kansas Defendants-Appellees.

No. 94-3357.

United States Court of Appeals, Tenth Circuit.

Jan. 3, 1996.

Before BRISCOE and MURPHY, Circuit Judges, and JENKINS, Senior District Judge. ^*

ORDER AND JUDGMENT ^**

JENKINS, Senior District Judge.

The plaintiffs own land to the north of the airport at McConnell Air Force Base in Wichita, Sedgwick County, Kansas. At the recommendation of the Air Force, the City of Wichita passed an ordinance and Sedgwick County passed a resolution creating so-called airport overlay districts (AODs) north of McConnell and prohibiting certain uses of the property within the districts. The plaintiffs' property is within the AODs.

The plaintiffs brought this civil-rights action claiming that the City and County had violated their constitutional rights. The district court dismissed as unripe the plaintiffs' constitutional claims as applied to their property. The plaintiffs do not challenge that ruling on appeal. The district court also granted summary judgment in favor of the defendants on the plaintiffs' facial constitutional challenge, without allowing the plaintiffs to conduct discovery. The district court concluded that the AOD restrictions were a proper exercise of the defendants' police power, were rationally related to a legitimate governmental purpose and were not arbitrary and capricious.

On appeal, the plaintiffs raise only two issues--whether the defendants' land-use restrictions are unconstitutional on their face, and whether the district court improperly stayed discovery. We affirm on both issues.

I.

At oral argument, counsel for the plaintiffs candidly admitted that, if the plaintiffs were not entitled to further discovery, a reversal on the merits would do them little good. We will therefore address the discovery issue first.

In response to the plaintiffs' complaint, the defendants filed motions to dismiss or, in the alternative, for summary judgment. They then sought protective orders suspending discovery until the court ruled on their motions to dismiss or for summary judgment. Apparently the magistrate judge stayed discovery pending resolution of the summary judgment motions, although an order staying discovery was not entered until after the plaintiffs filed their notice of appeal. The plaintiffs claim that the district court erred by deciding the summary judgment motions without first allowing them to complete discovery.

We review decisions relating to discovery for an abuse of discretion. Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir.1995).

It does not appear from the record that the district judge expressly considered the plaintiffs' argument that they should have been allowed discovery. However, a judgment that reaches the correct result will not be disturbed on appeal even if the trial court relied upon a wrong ground for its judgment, Miller v. City of Broken Arrow, 660 F.2d 450, 456 (10th Cir.1981), cert. denied, 455 U.S. 1020 (1982), or, as here, did not expressly address the issue. We can affirm on any ground that finds support in the record. Colorado Flying Academy, Inc. v. United States, 724 F.2d 871, 880 (10th Cir.1984), cert. denied, 476 U.S. 1182 (1986).

The rule governing summary judgments provides the mechanism for opposing summary judgment when further discovery is necessary:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Fed.R.Civ.P. 56(f). A rule 56(f) affidavit must contain more than a mere assertion that further discovery is necessary. It must also "state with specificity why extra time is needed and how the additional time and material will rebut the summary judgment motion." International Surplus Lines Ins. Co. v. Wyoming Coal Refining Sys., Inc., 52 F.3d 901, 905 (10th Cir.1995). See also Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir.1984) ("the party filing the affidavit must show how additional time will enable him to rebut [the] movant's allegations of no genuine issue of fact"). The failure to file a rule 56(f) affidavit alone can be enough to reject a claim that the opportunity for discovery was inadequate. Burlington Coat Factory Warehouse Corp. v. Esprit de Corp., 769 F.2d 919, 926 (2d Cir.1985). See also Weir v. Anaconda Co., 773 F.2d 1073, 1079-80 n. 4, 1082 & n. 10 (10th Cir.1985). But see Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir.1992) ("Even in the absence of a properly supported request under Rule 56(f), a district court may, in the interest of justice, allow a party additional time to marshal what evidence he does have in opposition to a summary judgment motion") (emphasis added).

It appears from the record that the plaintiffs did not submit a rule 56(f) affidavit. They only suggested, in their brief in response to the defendants' motions to dismiss or for summary judgment, that the court should allow discovery to be completed before hearing those motions. They did not specify what facts they hoped to discover. Bare assertions in memoranda that additional discovery is necessary cannot substitute for a rule 56(f) affidavit. Committee for the First Amendment, 962 F.2d at 1522. Even in a rule 56(f) affidavit, such conclusory assertions cannot preclude summary judgment. International Surplus Lines, 52 F.3d at 905. The district court therefore did not err in ruling on the defendants' summary judgment motions without first allowing additional discovery. ¹

Moreover, the plaintiffs have not shown that they would have been entitled to the additional discovery they claim the district court should have allowed.

Before a party can obtain discovery, he or she must first show that the information sought to be discovered "is relevant to the subject matter involved in the pending action." Fed.R.Civ.P. 26(b)(1). On appeal, the plaintiffs claim that additional discovery might have shown that, in adopting use restrictions that affect the plaintiffs' property, the City and County were motivated not so much by safety concerns as by pressure from the Air Force and the fear that the Air Force might close McConnell if the defendants did not meet its demands. Ordinarily, the subjective motivation of governing bodies is irrelevant to the validity of their enactments. See, e.g., National Paint & Coating Ass'n v. City of Chicago, 147 F.R.D. 184, 185 (N.D.Ill.1993); Apel v. Murphy, 70 F.R.D. 651, 654-55 (D.R.I.1976). That is because courts usually "will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." United States v. O'Brien, 391 U.S. 367, 383 (1968). Courts "must judge by results, not by the varied factors which may have determined legislators' votes." Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220, 224 (1949). See also Fraternal Order of Police Hobart Lodge # 121, Inc. v. City of Hobart, 864 F.2d 551, 554 (7th Cir.1988).

Discovery into motive may be permissible when the alleged constitutional violation " 'turns on an unconstitutional motive,' " that is, where the government's motive is what makes the action unconstitutional. Penthouse Int'l, Ltd. v. Meese, 939 F.2d 1011, 1017 (D.C.Cir.1991) (quoting Siegert v. Gilley, 895 F.2d 797, 802 (D.C.Cir.1990), aff'd on other grounds, 500 U.S. 226 (1991)), cert. denied, 503 U.S. 950 (1992). ² As discussed more fully below, however, the plaintiffs have not shown that the City ordinance and County resolution would be unconstitutional even if they had been passed to forestall the closing of McConnell. Therefore, we cannot say the district court abused its discretion by granting the defendants' motions for summary judgment without allowing the plaintiffs discovery.

II.

On the merits, the plaintiffs claim that the City ordinance and County resolution creating the airport overlay districts (AODs) and adopting land-use restrictions for those districts are invalid on their face. The district court rejected the argument and granted the defendants summary judgment on the plaintiffs' facial invalidity claim.

We review a grant of summary judgment de novo. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 113 S.Ct. 635 (1992). That does not mean, however, that we review the City's and County's actions de novo. The plaintiffs concede that the issue before the district court was not whether the City's and County's actions were necessary or even wise but whether the actions were arbitrary and capricious. The plaintiffs claim that the district court erred in holding that the defendants' imposition of density and use restrictions for the plaintiffs' property was not arbitrary and capricious. ³

In determining whether local governmental action is arbitrary and capricious, courts are not free to substitute their own judgment for that of the local governing bodies. "[T]he federal courts do not sit as arbiters of the wisdom or utility of [social and economic] laws." Allright Colorado, Inc. v. City & County of Denver, 937 F.2d 1502, 1512 (10th Cir.199...