San Antonio Firefighters' Ass'n v. City of San Antonio

• Decision Date: 01 September 2019
• Docket Number: Civil Action No. SA-18-CV-745-XR
• Citation: 404 F.Supp.3d 1045
• Parties: SAN ANTONIO FIREFIGHTERS' ASSOCIATION, LOCAL 624, Plaintiff, v. The CITY OF SAN ANTONIO, Texas, Defendant.
• Court: U.S. District Court — Western District of Texas

404 F.Supp.3d 1045

SAN ANTONIO FIREFIGHTERS' ASSOCIATION, LOCAL 624, Plaintiff,

v.The CITY OF SAN ANTONIO, Texas, Defendant.

Civil Action No. SA-18-CV-745-XR

United States District Court, W.D. Texas, San Antonio Division.

Signed September 01, 2019

Cristen David Feldman, The Feldman Firm, PC, Shannon Smittick, Pro Hac Vice, William X. King, George W. Vie, III, David M. Feldman, Feldman & Feldman, P.C., Houston, TX, for Plaintiff.

Deborah Lynne Klein, San Antonio, TX, Marianne Nitsch, William Christian, Graves Dougherty Hearon and Moody PC, Austin, TX, for Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

On this date, the Court considered Defendant City of San Antonio's motion for summary judgment (docket no. 31), Plaintiff San Antonio Firefighters' Association, Local 624's response (docket no. 39), Defendant's reply (docket no. 42), Plaintiff's supplemental response (docket no. 50), Defendant's supplemental reply (docket no. 51), and both parties' arguments on August 20, 2019 (docket no. 53). After careful consideration, the Court GRANTS Defendant's motion with respect to all claims.

BACKGROUND

Plaintiff San Antonio Professional Firefighters' Association (the "Union") is a labor union and the exclusive bargaining agent for firefighters employed by the City of San Antonio. Docket no. 26 at 2. The undisputed facts are that on February 20, 2018, the Union launched the "San Antonio First" ballot initiative. Id. The initiative sought various amendments to the City of San Antonio's municipal charter such as requiring the city to agree to arbitration in the event of an impasse in collective bargaining. Id.

To certify such a charter amendment petition and submit the measure to voters, state law requires the signatures of five percent of the qualified voters in the municipality, or 20,000 signatures, whichever number is smaller. TEX. LOC. GOV'T CODE § 9.004(a).

In March 2018, Union representatives began to gather those signatures along the walkways outside branches of the City of San Antonio Public Library System (the "library") as well as the Northeast Senior Center (the "senior center"), a facility operated by the City's Department of Human Services. Docket no. 31-2 at 16-23; docket no. 31-3 at 3.

Both the library and senior center had policies governing such political activities on their grounds. In 2013, the library established a policy of "allowing the use of portions of the exterior grounds of library property by the public for free speech activities including campaigning, political statements, announcements, speeches, and distributing literature." Docket no. 31-1 at 1, 5. The policy directed library supervisors and branch services coordinators to select a "Free Speech Area ... to allow for a full range of freedom of speech activities while also affording adequate protection to the efficient functioning of the library." Id. The policy provided no further guidance concerning the placement of the free speech areas, such as directing branch managers to consider size of the available space or distance from the library. Docket no. 31-2 at 3-7; docket no. 50-1 at 86.

In contrast to the library's free speech areas, there is no such zone on the grounds of the senior center. Docket no. 31-3 at 4; docket no. 31-3 at 4, 9. Because the City's senior centers receive federal grants, they are subject to Texas Department of Aging and Disability Services regulations barring distribution of "political materials" and prohibiting political campaigning unless each political party running is given an equal opportunity to participate. 40 TEX. ADMIN. CODE § 85.309(d). The senior center's policy (the "Political Activity Policy") with respect to activities inside the senior center is intended to protect the centers from "political pressure, to prohibit use of City of San Antonio resources for political purposes, and to avoid the appearance of bias or favoritism." Docket no. 31-3 at 9. The policy prohibits the centers from "endors[ing] any candidate, party, or issue" and prohibits the presentation and posting of political and campaign materials. Id. at 9-10. The senior center manager must approve in advance anyone that wants to make a presentation at the senior center. Docket no. 50-2 at 54-55.

When library staff encountered Union representatives gathering signatures outside their building entrances in March 2018, staff gave the representatives a copy of the Free Speech Policy and requested that they relocate to each library's Free Speech Area. Docket no. 31-2 at 16-23; docket no. 31-3 at 4-5. Similarly, the senior center staff informed the representatives that signature gathering was prohibited on senior center grounds and requested that the representatives relocate to the nearest public sidewalk. Docket no. 31-3 at 5. In some instances, the Union representatives refused to relocate, and the library and senior center staff called the San Antonio Police Department. Docket no. 31-2 at 16-23; docket no. 31-3 at 5. The police issued verbal trespass warnings and threatened arrest but did not arrest or charge any representative with a crime. Docket no. 31 at 13.

In addition, shortly after the Union representatives began gathering signatures, the library distributed signs to each branch manager to post on library grounds, informing library patrons of their rights with respect to any petitions on library grounds. Docket no. 31-1 at 6.

Petition Drive Information

Individuals may be around this area attempting to gather signatures for petitions. Please be aware of the following:

• You should be allowed to read the petition before you agree to sign or not.

• You should not be pressured or intimidated into signing.

• You should not be offered any money or anything of value in exchange for your signature.

If you have any concerns about petition gathering please contact the City of San Antonio at:

(210)-207-8952 or (210)-207-5066

Text of Library Signs (Docket no. 31-1 at 6)

On July 19, 2018, the Union filed its Original Complaint, docket no. 1, which was amended on October 18, 2018. Docket no. 26.¹ The Union brings free speech and retaliation claims under the First Amendment, an unconstitutional vagueness claim under the First and Fourteenth Amendments, and free speech and vagueness claims under the Texas Constitution. Id. The City now moves for summary judgment on all claims. Docket no. 31.

DISCUSSION

I. Standard of Review

The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56. To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the non-moving party's claim or defense, or, if the crucial issue is one for which the non-moving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the non-movant's claim or defense. Lavespere v. Niagara Machine & Tool Works, Inc. , 910 F.2d 167, 178 (5th Cir. 1990). Once the movant carries its initial burden, the burden shifts to the non-movant to show that summary judgment is inappropriate. See Fields v. City of S. Hous. , 922 F.2d 1183, 1187 (5th Cir. 1991).

For a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the non-movant, or, in other words, that the evidence favoring the non-movant is insufficient to enable a reasonable jury to return a verdict for the non-movant. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the non-movant as well as the "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The Court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment, id. at 150, 120 S.Ct. 2097, and must review all facts in the light most favorable to the non-moving party. First Colony Life Ins. Co. v. Sanford , 555 F.3d 177, 181 (5th Cir. 2009).

II. Analysis

The Union brings the following claims under the United States Constitution: violation of free speech, retaliation, and vagueness or lack of fair notice. The Union also brings claims for violation of free speech and vagueness under the Texas Constitution. The City moves for summary judgment on all claims.

A. Plaintiff's Free Speech Claim

The City argues summary judgment is warranted on the First Amendment claim because: (1) the library and senior center exteriors are nonpublic forums, (2) the policies are reasonable, and (3) the policies are viewpoint neutral. The Union, in turn, bifurcates its argument; it argues that the library is a designated public forum and, as such, any restrictions on free speech activities are subject to a more restrictive constitutional standard. The Union argues the City's actions do not pass constitutional muster because (1) the selection of the free speech areas at the library were ad hoc designations that were not narrowly drawn to achieve the City's purported interests and thus did not leave open ample alternative channels for signature-gathering, and (2) the City's posting signage in response constitutes viewpoint discrimination. As to the senior center , the Union concedes it is a nonpublic forum but argues the policy there lacks sufficient standards and is therefore susceptible to viewpoint discrimination. The Court will first conduct a forum analysis to determine the classification of each forum at issue and will then apply the applicable level of...