Morgan v. Plano Indep. Sch. Dist.

• Decision Date: 26 July 2013
• Docket Number: No. 12–40493.,12–40493.
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Doug MORGAN; Robin Morgan; Jim Shell; Sunny Shell; Sherrie Versher; Christine Wade, Plaintiffs–Appellees v. PLANO INDEPENDENT SCHOOL DISTRICT, Defendant–Appellant

724 F.3d 579

Doug MORGAN; Robin Morgan; Jim Shell; Sunny Shell; Sherrie Versher; Christine Wade, Plaintiffs–Appellees

v.PLANO INDEPENDENT SCHOOL DISTRICT, Defendant–Appellant

No. 12–40493.

United States Court of Appeals, Fifth Circuit.

July 26, 2013.

William Charles Bundren, Esq. (argued), Wm Charles Bundren & Associates, Frisco, TX, Jeffrey Carl Mateer, General Counsel, Hiram S. Sasser, Esq., Liberty Legal Institute, Plano, TX, Clyde Moody Siebman, Siebman, Burg, Phillips & Smith, L.L.P., Sherman, TX, for Plaintiff–Appellees.

Charles J. Crawford, Director (argued), Richard M. Abernathy, Esq., Abernathy, Roeder, Boyd & Joplin, P.C., McKinney, TX, for Defendant–Appellant.

Appeal from the United States District for the Eastern District of Texas.

Before KING, DAVIS, and ELROD, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

In this appeal, Plano Independent School District (“PISD”) argues that the Texas Religious Freedom Restoration Act's (“TRFRA”) pre-suit notice requirement is a jurisdictional prerequisite to suit and that because Plaintiffs did not strictly comply by sending a letter certified mail, return receipt requested, PISD's governmental immunity has not been waived. Finding that compliance with the pre-suit notice requirement is jurisdictional under Texas law and that the district court erred in denying PISD's Motion for Partial Summary Judgment against the Plaintiffs, we REVERSE.

I.

The facts in this case are well known to this court,¹ and while this appeal presents a very narrow legal question that does not turn on those underlying facts, a brief recitation is necessary to understand the context of the parties' arguments.

Plaintiffs in this case are the parents of four former elementary school students (“the Morgans”) ² in the PISD who sued the school district over an alleged violation of First Amendment rights. Plaintiffs complained that the Morgans' third-grade son Jonathan was prevented from distributing a “candy cane ink pen” with a laminated card containing a religious message about the legend of the candy cane and its Christian origins at a winter break party on December 19, 2003.

Doug Morgan (father of Jonathan Morgan) prior to the December 2003 winter party, wrote an e-mail to Carole Greisdorf, assistant superintendent of the PISD, to investigate PISD's policies and expressing concern about the policies and regulations affecting the “[r]eligious expression of our children.” Greisdorf responded that concerns about how religious expression is handled should first be addressed with the school principal. Doug, and his wife, Robin Morgan, then met personally with Jonathan's elementary school principal, Lynn Swanson, on December 4, 2003. During that meeting Principal Swanson informed the Morgans that it was the practice, policy, and custom of the PISD that religious materials could not be distributed while on school property because of the religious viewpoint of the materials and that only secular materials and gifts could be distributed or displayed at the party. On December 17, 2003, Morgan again e-mailed Greisdorf and expressed his “strong desire” that his son be allowed to engage in religious expression by distributing the candy canes at the party. That same day Greisdorf responded to this e-mail by confirming that Principal Swanson was “exactly right in her interpretation of the Plano ISD policies.”

Later, on December 17, 2003, the Morgans, through their attorney, sent a demand letter entitled “Unconstitutional Violation of Right to Seasonal Religious Expression” to Principal Swanson, Superintendent Douglas Otto, Deputy Superintendent Danny Modisette, and all the members of the PISD Board of Trustees. The letter complained that the PISD and its policies, customs, and procedures were interfering with Jonathan Morgan's right to religious expression and contended that Morgan had a right to express his religious faith through the distribution of personal gifts to fellow students. The letter also included a “demand,” requesting notification that Jonathan and students would be free to distribute their gifts to fellow students. It concluded that “[u]nless we hear from you within this time frame, we will seek redress in federal court.” As the party was two days away at that point, the letter was delivered to Principal Swanson via fax and U.S. mail, and the letter was e-mailed to all others. It is undisputed that the letter was not sent by certified mail, return receipt requested. On December 18, 2003, PISD's attorney responded to the letter and informed the Morgans and their attorney that Jonathan could not distribute candy canes in the classroom or hallways in conjunction with the holiday party.

The families filed the present lawsuit against the PISD on December 15, 2004, prior to the next scheduled winter break party, which was to occur on Friday, December 17, 2004. The original and amended complaints contain six counts: violation of freedom of speech under the federal and state constitutions, violation of equal protection rights, free exercise of religion and establishment clause, intentional infliction of emotional distress, and violation of religious freedom protected by the TRFRA. Plaintiffs sought a temporary restraining order (“TRO”), preliminary and permanent injunctions, a declaratory judgment, nominal damages, punitive damages, and attorneys' fees and costs against PISD. On December 16, 2004, the district court granted the request for a TRO and enjoined the school district and school officials from interfering with or prohibiting Plaintiffs and other students from distributing religious viewpoint gifts at the 2004 winter break party or from committing any acts calculated to cause students to feel uncomfortable because of a student's exercise of religion.

After six years of litigation, on May 24, 2011, PISD filed a Motion for Partial Summary Judgment on (1) Plaintiffs' Texas Constitution claims and (2) Plaintiffs' TRFRA claims. On March 30, 2012, the district court granted partial summary judgment on the Texas Constitution claims and found that the Versher, Shell, and Wade Plaintiffs could not sue under the TRFRA because they failed to give proper notice prior to filing suit; but the court denied partial summary judgment as to the Morgans, finding that the Morgan Plaintiffs' notice was sufficient and that their TRFRA suit was not barred. This left only the Morgans' TRFRA as-applied claims as to the 2004 policy pending.³ The present appeal is limited to the Morgans' TRFRA claims, more particularly, PISD's contention that the written notice sent, received, and responded to by PISD is not sufficient notice so as to waive governmental immunity because the manner of delivery was not by certified mail, return receipt requested.

II.

The parties first dispute whether the district court's order denying governmental immunity from suit is an immediately appealable order. In Shanks v. AlliedSignal, Inc., this court stated that “[a]lthough appellate jurisdiction under § 1291 is a matter of federal law, we look to state law to determine whether the basis of [a defendant's] claim is properly characterized as an immunity from suit or merely a defense to liability.” 169 F.3d 988, 992 (5th Cir.1999). Because it is well-established under Texas law that PISD's governmental immunity is not a mere defense to suit but rather is complete immunity from suit, this court has jurisdiction.⁴ And because governmental immunity from suit defeats a trial court's jurisdiction, whether a trial court has jurisdiction is a question of law subject to de novo review. See Briseno v. Ashcroft, 291 F.3d 377, 379 (5th Cir.2002); Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999).

III.

The TRFRA (codified at TEX. CIV. PRAC. & REM. CODE §§ 110.001–110.012) provides that “a government agency may not substantially burden a person's free exercise of religion” unless the burden is in “furtherance of a compelling governmental interest” and is “the least restrictive means of furthering that interest.” § 110.003. Under section 110.008: “ Subject to Section 110.006, sovereign immunity to suit and from liability is waived and abolished to the extent of liability created by Section 110.005, and a claimant may sue a government agency for damages allowed by that section.” ⁵ (emphasis added).

Section 110.006, in turn, provides:

(a) A person may not bring an action to assert a claim under this chapter unless, 60 days before bringing the action, the person gives written notice to the government agency by certified mail, return receipt requested:

(1) that the person's free exercise of religion is substantially burdened by an exercise of the government agency's governmental authority;

(2) of the particular act or refusal to act that is burdened; and

(3) of the manner in which the exercise of governmental authority burdens the act or refusal to act.

(b) Notwithstanding Subsection (a), a claimant may, within the 60–day period established by Subsection (a), bring an action for declaratory or injunctive relief and associated attorney's fees, court costs, and other reasonable expenses if:

(1) the exercise of governmental authority that threatens to substantially burden the person's free exercise of religion is imminent ⁶....

....

(c) A government agency that receives a notice under Subsection (a) may remedy the substantial burden on the person's free exercise of religion.

(emphasis added).

PISD's argument is straightforward: Section 110.006 requires providing “written notice to the government agency by certified mail, return receipt requested,” 60 days before bringing an action under the TRFRA. PISD is a public school district and, absent a waiver effected by clear and unambiguous language, PISD enjoys governmental immunity from suit and liability.⁷See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 & n. 3, 697 (Tex.2003); Bonillas v. Harlandale Indep. Sch. Dist., 832 F.Supp.2d 729, 735 (W.D.Tex.2011). PISD cites...