Turning Point USA at Ark. State Univ. v. Rhodes, 3:17CV00327 JLH

• Court: United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
• Citation: 409 F.Supp.3d 677
• Docket Number: NO. 3:17CV00327 JLH,3:17CV00327 JLH
• Parties: TURNING POINT USA AT ARKANSAS STATE UNIVERSITY; and Ashlyn Hoggard, Plaintiffs v. Ron RHODES, individually, et al., Defendants
• Decision Date: 19 August 2019

409 F.Supp.3d 677

TURNING POINT USA AT ARKANSAS STATE UNIVERSITY; and Ashlyn Hoggard, Plaintiffs
v.
Ron RHODES, individually, et al., Defendants

NO. 3:17CV00327 JLH

United States District Court, E.D. Arkansas, Jonesboro Division.

Signed August 19, 2019

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David Andrew Cortman, Pro Hac Vice, Alliance Defending Freedom, Lawrenceville, GA, Ethan Christopher Nobles, Nobles Law Firm, Benton, AR, Jonathan Larcomb, Pro Hac Vice, Alliance Defending Freedom, Washington, DC, Tyson C. Langhofer, Pro Hac Vice, Alliance Defending Freedom, Scottsdale, AZ, for Plaintiffs.

Jeffrey W. Puryear, Ryan M. Wilson, Womack Phelps Puryear Mayfield & McNeil, P.A., Jonesboro, AR, Delena C. Hurst, Arkansas State University System, Rodney P. Moore, Wright, Lindsey & Jennings, Little Rock, AR, for Defendants.

OPINION AND ORDER

J. LEON HOLMES, UNITED STATES DISTRICT JUDGE

This case presents a constitutional challenge to the "Freedom of Expression" policy previously in force at Arkansas State University campus in Jonesboro and the concomitant system-wide policy, which were repealed this spring.¹ The Policy applied to faculty, staff, students, student organizations, and visitors. Document #40-10 at 3. It designated seven specific areas of the ASU campus as "Free Expression Areas" where individuals could schedule "speaking, demonstrating, and other forms of expression" during certain hours on Monday through Friday. A person who wished to use other areas or other times for "speeches and demonstrations" could request to do so seventy-two hours or more in advance of the event. The Policy

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also provided that written materials could be distributed in specifically designated "distribution areas," including any of the Free Expression Areas. No stands, tables, or booths were allowed in distribution areas, except in the Free Expression Areas, and only with permission from a specified university official. Id. at 3-4.

In the fall of 2017 ASU student Ashlyn Hoggard wanted to start a local chapter of Turning Point USA on the ASU campus.² Hoggard, along with Emily Parry, a non-student representative of Turning Point USA, set up a table on the edge of a large, open patio area outside the Reng Student Union in Heritage Plaza on ASU's campus. They began speaking with passing students in an attempt to recruit individuals and start a local Turning Point USA chapter. Hoggard and Parry had not requested permission from any ASU official to set up the table or promote Turning Point USA on the Heritage Plaza patio.

ASU student union administrators Sarah Ponder and Elizabeth Rouse soon approached them, told them that they were not allowed to set up a table where they were, and instructed them to stop their activities. Two ASU police officers, Terry Phipps and Andrew Thrasher, arrived. After Parry engaged the ASU employees verbally, Phipps issued Parry a citation for violating the Policy and directed her to leave campus. Hoggard and Parry took down their table and stopped their promotion activities that day. Hoggard later succeeded in starting a chapter of the organization at ASU.

This lawsuit commenced. Hoggard and Turning Point USA at ASU sued several ASU officials in their official capacities for injunctive and declaratory relief and in their individual capacities for damages. The plaintiffs claim under 42 U.S.C. § 1983 that the Policy violates the first and fourteenth amendments to the United States Constitution. They challenge the Policy on its face and as it was applied to them. The complaint named as defendants, in their official and individual capacities, the following: Ron Rhodes, Tim Langford, Niel Crowson, Stacy Crawford, and Price Gardner, all members of the Board of Trustees of the Arkansas State University System as of October 2017; Charles Welch, President of the ASU System; Kelly Damphousse, Chancellor of ASU; William Stripling, Vice Chancellor for Student Affairs of ASU; and Martha Spack, Director of Student Development and Leadership of ASU. In February, the Court granted a motion to substitute a new member of the Board, Christy Clark, in her official capacity for former Board member Ron Rhodes in his official capacity. Rhodes remains as a defendant in his individual capacity only. Notably, the plaintiffs have not named Ponder, Rouse, Phipps, or Thrasher as defendants; nor is Parry a plaintiff.

As relief, the complaint requests a declaratory judgment that the Policy and associated practices, facially and as applied, violate the plaintiffs' rights under the first and fourteenth amendments; an injunction prohibiting the defendants from enforcing the Policy and associated practices; compensatory and nominal damages; and attorneys' fees.

The defendants have moved to dismiss the case as moot. The plaintiffs and the defendants have filed cross motions for summary judgment. The Court held oral argument on these motions. The defendants also have filed a supplemental motion for summary judgment addressing an

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issue that came up at the oral argument—whether the trustees can be individually liable for failing to repeal the Policy. For the reasons that will be explained, the motion to dismiss as moot is granted on all claims except the claim against the defendants in their individual capacities for nominal damages. Based on the doctrine of qualified immunity, summary judgment is granted in favor of the defendants on that claim.

MOTION TO DISMISS

Article III of the United States Constitution authorizes federal courts to hear cases and controversies. A case is moot, and no longer a case or controversy, when the issues presented are no longer live or the parties no longer have a legally cognizable interest in the outcome. Teague v. Cooper , 720 F.3d 973, 976 (8th Cir. 2013) (quoting Already, LLC v. Nike, Inc. , 568 U.S. 85, 91, 133 S. Ct. 721, 726, 184 L. Ed. 2d 553 (2013) ). "Through the passage of time and the occurrence of irrevocable events, disputes may disappear so that federal courts no longer can grant effective relief." McFarlin v. Newport Special Sch. Dist. , 980 F.2d 1208, 1210 (8th Cir. 1992).

A request for injunctive relief is moot if the injunctive relief sought would no longer have any meaning for the party seeking it. See Forbes v. Ark. Educ. Television Comm. Network Found. , 982 F.2d 289, 289 (8th Cir. 1992) (per curiam); McFarlin , 980 F.2d at 1210. Likewise, for a federal court to issue a declaratory judgment, the dispute must call not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts. Webb v. Smith , 2018 WL 1401315, at *3, 4:17CV00660-JLH (E.D. Ark. Mar. 20, 2018) (quoting Ashcroft v. Mattis , 431 U.S. 171, 172, 97 S. Ct. 1739, 1740, 52 L. Ed. 2d 219 (1977) ). If, therefore, a law has been amended or repealed, claims for injunctive or declaratory relief based on the previous version of the law are generally moot because there is no longer a need for court action. Phelps-Roper v. City of Manchester , 697 F.3d 678, 687 (8th Cir. 2012) (en banc). The exceptions to this rule are "rare and typically involve situations where it is virtually certain that the repealed law will be reenacted." Teague , 720 F.3d at 977.

Here, the plaintiffs ask the Court to enjoin the defendants from enforcing the Policy. Document #1 at 20. They also seek a declaratory judgment that the Policy and associated practices violate their constitutional rights. Id. Their requests for injunctive and declaratory relief revolve entirely around the Policy and ASU's enforcement of the Policy.

As the Court previously mentioned, however, the Policy has been repealed. In March the Arkansas General Assembly passed the FORUM Act,³ which prohibits state-supported universities from limiting expressive activities to only designated areas. Soon afterwards, the ASU Board of Trustees repealed the Policy. Document #57-2. The defendants contend that the case is therefore moot.

There is no reasonable expectation that the Board will reenact the earlier version—doing so would violate the FORUM Act. See Phelps-Roper , 697 F.3d at 687. Nor is there any evidence that the state will repeal the FORUM Act. See Teague , 720 F.3d at 977-78. An injunction prohibiting the defendants from enforcing the Policy thus would have no meaning because the Policy is no longer in effect and cannot be enforced against the plaintiffs or anyone else. A declaratory judgment would

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not adjudicate the parties' present rights pertaining to the Policy because it no longer exists and no one has any rights under it. The plaintiffs' claims for declaratory and injunctive relief are moot. As the claims against the defendants in their official capacities sought only declaratory and injunctive relief, all official-capacity claims are dismissed.

All the plaintiffs' facial challenges to the former Policy are also moot. See Phelps-Roper , 697 F.3d at 687. When a statute, ordinance or policy has been repealed, a plaintiff's facial challenge to it could remedy nothing — she is in no jeopardy that it will be enforced against her, and she has no legally cognizable interest in its constitutionality. In Phelps...