White Tail Park, Inc. v. Stroube

Decision Date05 July 2005
Docket NumberNo. 04-2002.,04-2002.
Citation413 F.3d 451
PartiesWHITE TAIL PARK, INCORPORATED; American Association for Nude Recreation-Eastern Region, Incorporated; K.H.; D.H., on behalf of themselves and their minor children, I.P. and B.P.; S.B.; J.B., on behalf of themselves and their minor child, C.B.; T.S.; J.S., on behalf of themselves and their minor children, T.J.S. and M.S., Plaintiffs-Appellants, v. Robert B. STROUBE, in his official capacity as Virginia State Health Commissioner, Defendant-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Argued: Rebecca Kim Glenberg, American Civil Liberties Union Foundation of Virginia, Richmond, Virginia, for Appellants. John Kenneth Byrum, Jr., Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. On Brief: Frank M. Feibelman, Cooperating Attorney for the ACLU of Virginia, Richmond, Virginia, for Appellants. Jerry W. Kilgore, Attorney General of Virginia, William E. Thro, State Solicitor General, Maureen Riley Matsen, Deputy State Solicitor General, Courtney M. Malveaux, Associate State Solicitor General, D. Nelson Daniel, Assistant Attorney General, Richmond, Virginia, for Appellee.

Before TRAXLER and DUNCAN, Circuit Judges, and FREDERICK P. STAMP, JR., United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. Judge TRAXLER wrote the opinion, in which Judge DUNCAN and Judge STAMP joined.

OPINION

TRAXLER, Circuit Judge.

The American Association for Nude Recreation-Eastern Region, Inc. ("AANR-East"), White Tail Park, Inc. ("White Tail"), and six individual plaintiffs appeal from the order of the district court dismissing their complaint for lack of standing. We affirm in part, reverse in part, and remand for further proceedings.

I.

AANR-East is one of several regional organizations affiliated with the American Association for Nude Recreation, a national social nudism organization. In June 2003, AANR-East opened a week-long juvenile nudist camp at a licensed nudist campground ("White Tail Park") operated by White Tail near Ivor, Virginia. AANR-East leased the 45-acre campground that ordinarily attracts about 1000 weekend visitors who come to engage in nude recreation and interact with other individuals and families who practice social nudism. White Tail Park also serves as home for a small number of permanent residents.

Modeled after juvenile nudist summer camps operated annually in Arizona and Florida by other regional divisions of AANR, the 2003 AANR-East summer camp offered two programs: a "Youth Camp" for children 11 to 15 years old, and a "Leadership Academy" for children 15 to 18 years old. J.A. 16. The camp agenda included traditional activities such as arts and crafts, campfire sing-alongs, swimming, and sports. The camp also included an educational component designed to teach the values associated with social nudism through topics such as "Nudity and the Law," "Overcoming the Clothing Experience," "Puberty Rights Versus Puberty Wrongs," and "Nudism and Faith." J.A. 57. A total of 32 campers attended the 2003 summer camp at White Tail Park. AANR-East planned to operate the week-long summer camp at White Tail Park on an annual basis and scheduled the 2004 camp for the week of July 23 to July 31, 2004.

Virginia law requires any person who owns or operates a summer camp or campground facility in Virginia to be licensed by the Food and Environmental Services Division of the Virginia Department of Health ("VDH"). See Va.Code § 35.1-18. Prior to the scheduled start of AANR-East's 2004 youth camp, the Virginia General Assembly amended the statute governing the licensing of summer camps specifically to address youth nudist camps. The amended statute requires a parent, grandparent or guardian to accompany any juvenile who attends a nudist summer camp:

The Board shall not issue a license to the owner or lessee of any hotel, summer camp or campground in this Commonwealth that maintains, or conducts as any part of its activities, a nudist camp for juveniles. A "nudist camp for juveniles" is defined to be a hotel, summer camp or campground that is attended by openly nude juveniles whose parent, grandparent, or legal guardian is not also registered for and present with the juvenile at the same camp.

Va.Code § 35.1-18 (emphasis added). Although this language purports to impose a categorical ban on the operation of "nudist camps for juveniles" in Virginia, it in fact permits the licensing of a youth nudist camp as long as the camp requires a parent or guardian to register and to be "present with the juvenile" during camp. Id.

In June 2004, Robert Roche, president of AANR-East, applied for a permit to operate the youth nudist camp scheduled for late July 2004.1 Like all applicants for permits under section 35.1-18 at that time, Roche was required to sign and submit with the application an acknowledgment that Virginia law banned the operation of nudist camps for juveniles as defined by Virginia Code § 35.1-18. Roche signed the acknowledgment and also orally assured Gary Hagy, Director of the Food and Environmental Services Division of the VDH, that AANR-East intended to comply with the new restrictions imposed by the General Assembly. VDH issued a summer camp permit to AANR-East, licensing it to operate a summer camp at White Tail Park from July 23, 2004 to July 31, 2004.

As the application process was proceeding, AANR-East, White Tail, and three sets of parents, suing anonymously on behalf of themselves and their children, filed this action against Robert B. Stroube, Commissioner of the VDH. The complaint asserts two claims: (1) that section 35.1-18 of the Virginia Code violates plaintiffs' right to privacy and to control the education and rearing of their children under the Fourteenth Amendment; and (2) that section 35.1-18 violates plaintiffs' First Amendment right to free association. Plaintiffs requested an order declaring section 35.1-18 of the Virginia Code unconstitutional, preliminary and permanent injunctive relief, and attorneys fees pursuant to 42 U.S.C.A. § 1988. Plaintiffs also filed a motion for a preliminary injunction together with the complaint. The Commissioner filed a motion to dismiss the action, arguing that plaintiffs lacked standing to bring suit.

On July 15, the district court denied the preliminary injunction after a hearing. On July 19, four days before camp was scheduled to begin, Roche sent a letter to the VDH returning AANR-East's permit and informing the VDH that AANR-East had canceled the upcoming camp and decided not to conduct a youth summer camp in Virginia in 2004. Roche enclosed a press release issued by AANR-East indicating that, in light of the district court's denial of the preliminary injunction, AANR-East was forced to cancel camp because the new Virginia statutory requirements "place[d] an undue burden on too many parents who had planned to send their children" to the camp. J.A. 103. According to AANR-East, twenty-four campers who would have otherwise attended the camp were precluded from doing so because no parent, grandparent, or guardian was able to accompany them to White Tail Park during the week scheduled for camp. Only eleven campers would have been able to attend in light of the new restrictions. Ultimately, however, AANR-East was able to operate its youth nudist camp by relocating to a neighboring state.

On August 10, 2004, the district court held a hearing on the Commissioner's motion to dismiss for lack of standing. At the hearing, the Commissioner argued that the case had become moot because AANR-East surrendered its permit after failing to secure a preliminary injunction and then successfully moved the camp to another state. The district court agreed:

Since the permit was surrendered, there would be no camp, so the [anonymous parents] could not maintain that the code section prevented them from sending their children to the summer camp. There was no camp to attend. Accordingly, the case is no longer justiciable. The [individual] plaintiffs no longer satisfy the case or controversy requirement.

J.A. 114. The district court concluded, in turn, that if the individual plaintiffs no longer satisfied the case or controversy requirement, then "neither does White Tail ... or AANR-East because their `organizational standing' derives from that of the anonymous plaintiffs." J.A. 114.

The district court explained further that the organizational plaintiffs, AANR-East and White Tail, lacked standing to assert their own constitutional rights, if any, because they were unable to establish actual or imminent injury resulting from the statutory requirement that all campers be accompanied by a parent or guardian. Accordingly, the district court granted the Commissioner's motion to dismiss for lack of standing.2

II.

We turn first to the question of mootness. The doctrine of mootness flows from the constitutional limitation of federal court jurisdiction to actual "Cases" or "Controversies." U.S. Const., art. III, § 2, cl. 1. "To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (internal quotation marks omitted). Thus, "a case is moot when the issues presented are no longer'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969).

With respect to AANR-East and White Tail, we cannot agree that the claims alleged in the complaint are moot. The district court concluded that AANR-East and White Tail derived standing to sue from their members who, the district court concluded, no longer satisfied the live controversy...

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