Todd v. Smith
| Decision Date | 27 November 1990 |
| Docket Number | No. 23452,23452 |
| Parties | Mike TODD, Appellant, v. Carey SMITH, individually and in his official capacity as former City Manager of the City of Myrtle Beach, South Carolina, Mack Stone, individually and in his official capacity as former Director of the Myrtle Beach Convention Center, and the City of Myrtle Beach, South Carolina, a municipal corporation, Respondents. Opinion . Heard |
| Court | South Carolina Supreme Court |
O. Fayrell Furr, Jr. and W. Lamar Flatt, Myrtle Beach, and Ronald M. Childress, Columbia, for appellant.
Michael W. Battle, Conway, for respondents.
Edmund H. Robinson, of Shimel, Ackerman, Theos, Spar and Robinson, Charleston, for amicus curiae, American Civil Liberties Union of South Carolina.
At issue in this appeal is whether the trial judge erred in ruling that the City of Myrtle Beach and/or its agents are not liable for damages alleged to have arisen by reason of their requiring the removal of Plaintiff-Appellant's art work from the convention center operated by the City of Myrtle Beach. The trial judge granted the Defendants-Respondents' summary judgment holding that none were liable. We affirm.
Plaintiff-Appellant Mike Todd was a member of the Waccamaw Arts and Crafts Guild (Guild) in November of 1982. The Guild members, through a series of agreements, were permitted by the City of Myrtle Beach to conduct art exhibits in the inner lobby of the Myrtle Beach Convention Center (Convention Center). The inner lobby is a wide hall through which all persons attending functions at the Convention Center must pass in order to reach the main auditorium. The City agreed to allow the Guild to self-police its displays and act as a self-censor, taking no role in such itself.
On November 7, 1982, Todd displayed an exhibition of his art work in the inner lobby. The exhibition consisted of thirty-one (31) paintings and six (6) sculptures. Before the exhibition, the works were reviewed by a representative of a screening committee appointed by the Guild, and found unobjectionable. On the evening of November 7th, Jane Charles, then President of the Guild, approached Todd and requested that he remove one of the paintings, entitled "Narcissus or Twentieth Century Mondonna," 1 because she found it offensive.
Todd refused to remove the painting. Thereafter, negotiations ensued between Todd, the Guild, and Mack Stone, Director of the Convention Center. Discussions were had on the possibility that the painting could be displayed separately in an office or covered and uncovered only for those wishing to view it. These negotiations fell through when the City refused to agree that no other paintings would be required to be removed from the exhibit. Thereafter, Defendant Carey Smith, the City of Myrtle Beach Manager, instructed Mack Stone to close the inner lobby of the Convention Center until the matter was resolved.
On November 9th, the Convention Center was open to the public solely for the purpose of entering the Convention Center auditorium. In addition, the entire exhibit was screened from the public by cloth partitions.
On November 11, 1982, Todd petitioned the circuit court for relief, alleging the Defendants had censored his art exhibition without due process of law. The petition sought an injunction restraining the Defendants from further interfering with Todd's exhibition, additional exhibition time, and money damages for lost profits and harm to Todd's reputation and occupation as an artist. The circuit court, after a hearing, issued a temporary injunction against the Defendants to preserve the status quo. The temporary injunction was granted on the basis that Todd had been deprived of procedural due process since obscenity procedures were not followed by the City when display of the painting was prohibited.
Todd reopened his exhibition pursuant to the temporary injunction order. Thereafter, Todd removed his exhibit because the inner lobby was being used as a display area for a previously scheduled blue grass music convention and Todd did not feel his exhibit was properly protected.
Todd then brought this action against the City of Myrtle Beach, Mack Stone, individually and in his official capacity as former Director of the Convention Center and Carey Smith, individually and in his official capacity as former City Manager pursuant to Federal Statute 42 U.S.C. § 1983 alleging a violation of his civil rights secured by the First and Fourteenth Amendments to the United States Constitution. The circuit court granted summary judgment in favor of all Defendants. This appeal challenges the court's ruling as to each of the Defendants.
The order of the circuit court correctly cites and relies upon the case of Monell v. The Department of Social Services cited infra. The testimony upon which the Plaintiff-Appellant would rely simply does not create a genuine issue of fact for trial on the merits. Patently, the action of the City Manager and/or the Director of the Convention Center does not represent official municipal policy. We approve of the trial judge's treatment of the liability issue wherein the order states:
Action against municipal defendants under Section 1983 were authorized by the landmark decision of the Supreme Court in Monell v. Dept. of Social Services, 436 U.S. 658 [98 S.Ct. 2018, 56 L.Ed.2d 611] (1978). In Monell, the court held that when a municipal policy of some nature is the cause of unconstitutional actions taken by municipal employees, the municipality itself will be liable. Liability will exist where the constitutional action 'implements or executes a policy, statement, ordinance, regulation or decision officially adopted and promulgated by municipal officers, or where the constitutional deprivation is visited pursuant to governmental custom even though such a custom has not received formal approval.' The court defined 'custom' with reference to Adickes v. S.H. Kress and Co., 398 U.S. 144 [90 S.Ct. 1598, 26 L.Ed.2d 142] (1970), as 'persistent in wide spread discriminatory practices of officials.' A policy or custom need not be made by the city's lawmakers, but can be set by those whose edicts which may fairly be said to represent official policy.
In the present case, the City of Myrtle Beach has elected to adopt the council/manager form of government. In the council/manager form of city government all legislative powers of the municipality and the determination of all matters of policy shall be vested in the municipal council, each member, including the mayor, to have one vote. Section 5-13-30, Code of Laws of South Carolina, 1976. Under the form of government adopted by the City of Myrtle Beach, the city manager and the director of the Myrtle Beach Convention Center do not have the authority to set city policy, nor can their acts be said to represent official policy in view of the legislative authority granted to the municipal council.
The acts of Defendants Carey Smith and Mack Stone were individual discretionary acts, involving a decision on how to handle a situation which has arisen in the Myrtle Beach Convention Center only once in the entire history of Myrtle Beach. The municipal council never met, nor did they vote, on the decision made by Defendants Smith and Stone. For that reason, the acts of Defendants Smith and Stone cannot be translated as the acts of the city council or the City of Myrtle Beach. The city council does not have the authority to delegate matters of policy of customs, and in this instance it did not delegate that authority to Carey Smith or Mack Stone, therefore the individual decisions of Defendants Smith and Stone do not give rise to liability for the City of Myrtle Beach under 42 U.S., Section 1983. Monell v. Dept. of Social Services, 436 U.S. 658 [98 S.Ct. 2018, 56 L.Ed.2d 611] (1978).
The most that can be said favorably to Plaintiff's contention that the city established a policy is that some discussion was held informally and individually with some members of council. Under the showing made in this case, we refuse to hold that it was the duty of council members to call a meeting and repudiate the actions of either the city manager or the director of the convention center. No policy was promulgated.
As to Defendants Smith and Stone, the trial judge correctly ruled that they enjoyed qualified immunity from suit by reason of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
AFFIRMED.
TOAL, J., dissenting in separate opinion.
I would reverse the trial court's grant of summary judgment to the City of Myrtle Beach and affirm the grant of summary judgment to Smith, the City Manager, and Stone, the Convention Center Director.
The defendants concede at the outset that the painting is not obscene, and was not determined to be so when Todd was told to close his exhibit or remove the painting. Yet, speech need not be adjudged obscene to be regulated. Before determining whether Todd's painting was permissibly regulated, however, other thresholds should be crossed.
In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the United States Supreme Court held for the first time that a municipality is a "person" subject to liability under Section 1983 for violating another's federally protected rights. To state a cause of action against a municipality under Section 1983, a plaintiff is required to plead three elements: (1) an official policy or custom (2) that causes the plaintiff to be subjected to (3) a denial of a constitutional right. Moore v. City of Columbia, 284 S.C. 278, 326 S.E.2d 157 (Ct.App.1985). A municipality may only be held liable under Section 1983 if the action complained of...
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