Lippoldt v. Cole, No. 04-3156.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Briscoe
• Citation: 468 F.3d 1204
• Parties: Donna LIPPOLDT, individually; Operation Save America, an unincorporated association; Philip Benham, individually, Plaintiffs-Appellants and Cross-Appellees, v. Stephen COLE, Deputy Chief, in his official and individual capacity as an agent/employee of the city of Wichita, Kansas; Beth Harlenske, in her official and individual capacity as an agent/employee of the city of Wichita, Kansas; City of Wichita, a political subdivision of the State of Kansas, Defendants-Appellees and Cross-Appellants.
• Docket Number: No. 04-3322.,No. 04-3168.,No. 04-3156.
• Decision Date: 07 November 2006

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468 F.3d 1204 Donna LIPPOLDT, individually; Operation Save America, an unincorporated association; Philip Benham, individually, Plaintiffs-Appellants and Cross-Appellees,
v.
Stephen COLE, Deputy Chief, in his official and individual capacity as an agent/employee of the city of Wichita, Kansas; Beth Harlenske, in her official and individual capacity as an agent/employee of the city of Wichita, Kansas; City of Wichita, a political subdivision of the State of Kansas, Defendants-Appellees and Cross-Appellants. No. 04-3156. No. 04-3168. No. 04-3322. United States Court of Appeals, Tenth Circuit. November 7, 2006.

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Frederick H. Nelson, American Liberties Institute, Orlando, FL, (Richard A. Macias, Wichita, Kansas, with him on the briefs), for Plaintiffs-Appellants/Cross-Appellees.

Jay C. Hinkel, Assistant City Attorney (Gary E. Rebenstorf, City Attorney, with him on the briefs), City of Wichita, Wichita, KS, for Defendants-Appellees/Cross-Appellants.

Before BRISCOE, McWILLIAMS, and EBEL, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiffs appeal (04-3156) and defendants cross-appeal (04-3168) the district court's orders concerning the constitutionality of the City of Wichita's ("City") denial of plaintiffs' ten parade permits, and a municipal court bond order. Lippoldt v. City of Wichita, 265 F.Supp.2d 1228 (D.Kan. May 28, 2003); Lippoldt v. Cole, 311 F.Supp.2d 1263 (D.Kan. Mar.31, 2004). Plaintiffs' counsel also appeal (04-3322) the district court's decision denying most of their requested attorney fees.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court's decision in case number 04-3156. We affirm in part and reverse in part the district court's decision in case number 04-3168, and remand to the district court with direction to dismiss the claims of Operation Save America ("OSA"). Last, in case number 04-3322, we affirm in part and reverse in part, and remand to the district court to address anew counsels' request for fees and costs.

I.

This suit concerns the City's response to the Summer of Mercy Renewal, plaintiffs' planned anti-abortion protests in July 2001, which commemorated the ten-year anniversary of similar protests in 1991. Plaintiffs Donna Lippoldt, OSA, and Philip Benham challenge the City's denial of their parade permits and the municipal court's bond order. OSA is an unincorporated association consisting of a group of volunteers who oppose abortion. Benham is OSA's Director, and Lippoldt volunteers for OSA-Wichita. The named defendants include the City, as well as Stephen Cole, Deputy Chief of Police for the City, and Elizabeth Harlenske, an Assistant City Attorney.

A. Denial of OSA's application for parade permits

As part of the Summer of Mercy Renewal, on July 6, 2001, Lippoldt applied for eleven parade permits on OSA's behalf. Lippoldt requested permits for two parades per day from July 17, 2001, through July 21, 2001, with a proposed route that included Bleckley Street and East Kellogg Drive, where Dr. George Tiller's abortion

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clinic is located.¹ Lippoldt requested an additional parade permit for a parade in the downtown area.

Under the City's parade ordinance, the City Treasurer "shall issue" a parade permit, unless one of six enumerated exceptions applies. Wichita City Code § 3.13.050 (emphasis added). The parties agree that none of the exceptions listed in Section 3.13.050 provide grounds for denying plaintiffs' parade permits.

Deputy Chief of Police Cole reviewed plaintiffs' parade applications. Cole explained, "it was my belief that the situation that we were dealing with out there warranted a denial, and I asked the law department for an opinion on that and for assistance." App. Vol. IV, at 600. Assistant City Attorney Harlenske researched the law regarding applications for parade permits and drafted a letter denying plaintiffs' applications. After the City Attorney revised it, Harlenske read the final version of the letter aloud to the police chief over the phone. With the police chief's approval, Cole signed the denial letter in his name on behalf of the police chief. Cole did not suggest any alternative to plaintiffs for accommodating the parades for a shorter period of time at the Bleckley street location because "that location was not an acceptable location." App. Vol. IV, at 586.

On July 10, 2001, one day before the City issued its decision on the plaintiffs' parade applications, the police chief signed a temporary regulation closing Bleckley Street to all vehicles, except those of residents or people conducting business in the area. The City closed Bleckley Street as part of a plan known as Operation Safe Protest, which the City had developed specifically in anticipation of the Summer of Mercy Renewal.

On July 11, 2001, the City issued one parade permit to OSA for a downtown parade, but denied OSA's ten applications for parade permits near Dr. Tiller's clinic. Defendants denied plaintiffs' parade applications for two reasons: (1) Bleckley Street was closed; and (2) the parades would interfere with local businesses in violation of Wichita City Code § 5.66.0557. Defendants claimed that once Bleckley Street was closed, it was no longer a street that fell within the parade ordinance. As to interference with businesses, Harlenske acknowledged that the parade ordinance did not allow the City to deny a parade permit merely because the planned parade would interfere with business. See Wichita City Code § 3.13.050. Deputy Chief Cole has approved other parades, knowing that the parades would interfere with local businesses.

B. Municipal court bond order

Plaintiffs also challenge a municipal court bond order. The bond order was effective from July 13, 2001, through July 22, 2001, during the Summer of Mercy Renewal. The municipal court order set bond amounts for specific offenses, including assault, battery, disorderly conduct, unlawful assembly, or rioting near Dr. Tiller's clinic. The order set different bond amounts for first arrests and subsequent arrests, and for residents and non-residents of Sedgwick County (where Wichita, Kansas is located).

C. Procedural history

On July 13, 2001, plaintiffs filed suit against the City, Deputy Chief Cole, and Assistant City Attorney Harlenske pursuant to 42 U.S.C. §§ 1983 and 1985, alleging violations of the First and Fourteenth

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Amendments of the United States Constitution and state constitutional claims. In their complaint, plaintiffs requested declaratory relief, compensatory damages, injunctive relief, and attorney fees.

On July 16, 2001, the district court granted plaintiffs' request for a temporary restraining order so that plaintiffs could hold parades during the Summer of Mercy Renewal. Plaintiffs held parades from July 17, 2001, through July 21, 2001, in downtown and along the Bleckley Street route past Dr. Tiller's clinic.

After the parades were held, the parties pursued discovery and filed various motions. On May 28, 2003, the district court granted in part and denied in part defendants' motion for summary judgment. Specifically, the district court determined that OSA, as an unincorporated association, was a "person" under 42 U.S.C. § 1983 and, therefore, was entitled to seek relief under the same. The district court further held that plaintiffs had standing to challenge the parade ordinance, which it held to be constitutional on its face, but lacked standing to challenge the municipal court bond order. The district court also dismissed the City as a party to the litigation based upon plaintiffs' failure to present evidence that the City had a permanent and well-settled practice of denying parade permits.

Thereafter, the district court held a bench trial on May 28-29, 2003, to resolve plaintiffs' remaining claims. Ultimately, the district court concluded that defendants had no basis for denying plaintiffs' parade applications under the City's parade ordinance. The district court also concluded that defendants Harlenske and Cole violated plaintiffs' constitutional rights, but it denied plaintiffs' requests for compensatory damages and a permanent injunction. The district court awarded nominal damages to plaintiffs in the amount of $1.00.

In considering plaintiffs' motion for attorney fees, the district court granted the motion in part and denied it in part. Specifically, the district court found that plaintiffs had prevailed in the first part of the litigation when the court issued the temporary restraining order on July 16, 2001, but that they had only formally prevailed at trial. The district court awarded attorney fees only for hours expended to obtain the temporary restraining order, and it also reduced counsels' requested rate.

II.

The parties raise five issues: (1) statutory interpretation of "person" in Section 1983; (2) standing; (3) causation as to Harlenske and Cole; (4) damages; and (5) attorney fees. We raise the issue of mootness sua sponte.

"In an appeal from a bench trial, we review the district court's factual findings for clear error and its legal conclusions de novo." Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th Cir.2001); Sanpete Water Conservancy Dist. v. Carbon Water Conservancy Dist., 226 F.3d 1170, 1177-78 (10th Cir.2000).

A. Unincorporated association as a Section 1983 plaintiff

In their cross-appeal, defendants claim that OSA, as an unincorporated association, is not a "person" under 42 U.S.C. § 1983. We agree.

As an initial matter, we note that, notwithstanding plaintiffs' arguments to the contrary, this is a matter of first impression. None of our cases specifically address whether an unincorporated association is a "person" for the purposes of Section 1983. Likewise, the cases cited by the district court and plaintiffs simply permit,...