Levin v. City & County of San Francisco
Levin v. City & County of San Francisco
Opinion of the Court
ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT
More than two years ago, the Court held that an ordinance enacted by the City and County of San Francisco (“the City”) was unconstitutional. See generally Mem. & Order (dkt. 92). While appealing that decision, the City amended its ordinance, mooting the appeal, See USCA Mem. Dispo. (dkt. 127) at 2. The Ninth Circuit then remanded the case for this Court to decide, in the first instance, whether its judgment against the City should be vacated as a result.
To make that decision, the Court must first determine whether the City’s own voluntary action mooted this case. See Chemical Prod. & Distrib. Ass’n v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006). If the answer is yes, the Court may decide, in its discretion, whether the equities counsel in favor of vacatur. See id. at 878; see also Am. Games, Inc. v. Trade Products, Inc., 142 F.3d 1164, 1168 (9th Cir. 1998); Blair v. Shanahan, 38 F.3d 1514, 1521 (9th Cir. 1994). If the answer is no, the Court has little choice but to vacate the judgment. Helliker, 463 F.3d at 878; see also United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 95 L.Ed. 36 (1950).
I.
The “principal condition” on which vacatur turns is whether mootness
The script flips again when one branch of government moves to vacate an adverse judgment after voluntary action of another branch has mooted the case. See Helliker, 463 F.3d at 879. These cases tend to follow a pattern: the legislature causes mootness by amending or repealing a law that the executive had been sued for enforcing — and then the executive moves to vacate the adverse judgment. When that happens, courts treat the executive as being “in a position akin to a party who finds its case mooted .on appeal by happenstance, rather than events within its control.” Nat’l Black Police Ass’n v. Dist. of Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997). The legislature, after all, “may act out of reasons totally independent of ending the lawsuit” or “because the lawsuit has convinced it that the existing law is flawed.” Id. at 352. So, without more, courts do not assume that the legislature acted simply to bail out the executive. Id.; accord Am. Library Ass’n v. Barr, 956 F.2d 1178, 1187 (D.C. Cir. 1992) (noting that Congress might have sought to “repair what may have been a constitutionally defective statute, which “represents responsible lawmaking, not manipulation of the judicial process”). Vacating the judgment thus becomes the “established practice” once more. See, e.g., Helliker, 463 F.3d at 878-79 (vacating judgment against state executive official after state legislature mooted case by passing statute preempting challenged law and accompanying state administrative regulations); Log Cabin Republicans v. United States, 658 F.3d 1162, 1165, 1168 (9th Cir. 2011) (per curiam) (vacating judgment against the federal government and federal executive officials after Congress mooted case by repealing “Don’t Ask, Don’t Tell”); Khodara Envtl., Inc. ex rel. Eagle Envtl., L.P. v. Beckman et al., 237 F.3d 186, 192, 195 (3d Cir. 2001) (Alito, J.) (vacating judgment against state and federal executive officials after Congress mooted case by amending statute governing construction of landfills); Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 121 (4th Cir. 2000) (vacating judgment against state executive officials after state legislature mooted case by- amending statute governing disposal of toxic waste).
.This “principle that legislation is attributed to the legislature alone is inherent in our separation of powers.”
The City maintains that separation-of-powers principles apply here in a “practical sense” because San Francisco’s governmental structure places different powers in different hands. See Mot. at 11. The City elects a Board of Supervisors that may act only by. ordinance and is expressly forbidden from interfering in administrative affairs.
The City’s system, however, is only one of countless ways in which lesser public bodies arrange their affairs. San Jose vests “[a]U powers of the City” in a city council that, like San Francisco’s Board of Supervisors, may only act “by ordinance.” S.J. Charter §§ 400, 600. But, rather than holding elections to select an executive officer, the city council appoints a city manager to handle day-to-day operations. Id. §§ 700-01. Portland, for its part, allows its city council to exercise its array of powers by whatever means, save delegating legislative functions. See Portland (Oregon) Charter § 2-104. Both San Jose and Portland also elect a mayor who, unlike in San Francisco, serves on the city council. See S.J. Charter §§ 500-01; Portland Charter §§ 2-102, 3-101. And these are just two contrasting examples — from major cities to boot.
The City’s position would thus force courts to examine town charters on a case-by-case basis to determine whether any
The Supreme Court’s cases on sovereign immunity and 42 U.S.C. section 1983 (“Section 1983”) provide something approaching The Standard Model of the governmental universe. And those cases suggest that, unlike the federal government and the states, the City is an ordinary litigant. The federal government enjoys sovereign immunity “save as it consents to be sued.” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). States presumptively enjoy the same, Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), and are not “persons” under Section 1983 because that term does not normally extend to sovereigns, Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
Bottom line: the privilege that the City seeks seems reserved for sovereigns. At least two circuits, for that matter, have held that a judgment against a city need not be vacated when the city repeals a challenged law — and so held without regard to its governmental structure. See Houston Chronicle Pub. Co. v. City of League City, Tex., 488 F.3d 613, 619 (5th Cir. 2007) (solicitation ordinance); 19 Solid Waste Dep’t Mech. v. City of Albuquerque, 76 F.3d 1142, 1144-45 (10th Cir. 1996) (drug testing policy). The Court likewise concludes that the City’s voluntary action mooted this case. It will therefore proceed to the equities.
When weighing the equities, the Court-must balance “the competing values of finality of judgments and right to reliti-gation of unreviewed disputes,” as well as any “consequences and attendant hardships” that might result. Am. Games, 142 F.3d at 1168 (quoting Ringsby Truck Lines, Inc. v. Western Conf. of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982)).
The City stresses that it is not trying “to have its cake and eat it-too” because it has scrupulously abided by the terms of injunctions issued here and in state court, and because it urged the Ninth Circuit to reach the merits on appeal. Mot. at 13; see also Dilley, 64 F.3d at 1372 n.6 (noting that it may weigh equitably in favor of vacatur if the party seeking it did not seek to avoid appellate review). The City also observes that both the original and amended ordinance “are now. a dead letter on independent state law.grounds,” making this Court’s constitutional holding unnecessary.
Fair enough, but not enough. Let’s have no illusions about what happened here. The City tried to repair some (but not all) of the original ordinance’s constitutional infirmities — and successfully requested a stay of the appeal to make those repairs. The City then sought review of the amended ordinance, which by its very design would have presented a closer question on the merits. Now, after being denied review, the City seeks vacatur based on mootness that it itself caused. The Court sees no equitable reason to reward litigants for attempting to hedge their bets.
What is more, judicial precedents are “presumptively correct and valuable ’to the legal community as a whole.” Bancorp, 513 U.S. at 26-27, 115 S.Ct. 386. They require “the investment of judicial resources,” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Seafirst Corp., 891 F.2d 762, 765 (9th Cir. 1989), while parties incur the “considerable expense” of litigation in the process of obtaining them, see, e.g., Visto Corp. v. Sproqit Tech., Inc., case no. 04-CV-0651-EMC, 2006 WL 3741946, at *7 (N.D. Cal. 2006). Judgments, in short, are not to be set aside lightly. This case is no different.
attorney’s fees. See Compl. (dkt. 1) at 25 (seeking fees under 42 U.S.C. section 1988). Because the Court entered judgment in their favor, Plaintiffs are likely “prevailing parties” entitled to fees even though the case became moot on appeal— at least as things stand now.
* * ⅛
For the foregoing reasons, the Court DENIES the City’s motion for relief from judgment and, pursuant to Civil Local Rule 7-1 (b), does so without oral argument. Accordingly, the Court VACATES the. hearing set for June 9,2017.
IT IS SO ORDERED.
. The Court has authority to consider the City’s request for vacatur under Federal Rule of Civil Procedure 60(b). U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 29, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994).
. The City maintains that separation-of-powers principles and the presumptive legitimacy of legislative actions are two separate and independent reasons for ordering vacatur here. See Mot. at 11; Reply at 1. Not necessarily. Although legislative actions are presumptively legitimate, Black Police Ass'n, 108 F.3d at 353, so are executive actions, United
. San Francisco’s charter also stresses that ''[a]ll legislative acts shall be made by ordinance,” S.F. Charter § 2.105, suggesting that the Board performs at least some non-legislative acts.
. Administrative agencies with mixed legislative and executive functions might create similar difficulties. See Bancorp, 513 U.S. at 25 n.3, 115 S.Ct. 386; accord Helliker, 463 F.3d at 880. Mercifully, there is no need to grapple with those difficulties here.
. Section 1983 provides a private right of action against any person who, under color of state law, deprives another of a federal right. See 42 U.S.C. § 1983. So, by its terms, the statute does not apply to the federal government or federal officials. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 406, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
. Tribal governments, for their part, are sovereigns. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (noting that tribal governments presumptively enjoy sovereign immunity). Unlike the federal government and the states, tribal governments are under no expectation to adhere to separation-of-powers principles, though many tribes have done just that. See, e.g., Yavapai-Apache Nation Const. art. III ("The Yavapai-Apache government shall be divided into three (3) separate and independent branches of government....”).
. The City cites both In re City of El Paso, 887 F.2d 1103 (D.C. Cir. 1989), and Nat'l Black Police Ass’n v. Dist. of Columbia, 108 F.3d 346 (D.C. Cir. 1997), as examples of courts vacating "adverse decisions against a local government where the local government has amended a challenged law or otherwise created mootness.” Mot. at 10. But those cases are not persuasive here — and not just because neither decision is binding. Though it ordered vacatur, the former case expressly acknowledged that the City of El Paso "contributed to the occurrence of mootness on appeal” after
. This reality also suggests that the City’s fears of collateral consequences are overstated. See Ford v. Wilder, 469 F.3d 500, 506 (6th Cir. 2006).
. The City argues that the “same or greater” investment of time and resources in Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. 2011), blunts the force of these considerations here. See Reply at 6. Not so. The Ninth Circuit ordered vacatur in that case because Congress repealed the challenged statute, mooting a case against the executive branch. See Log Cabin Republicans, 658 F.3d at 1167-68. The district court, therefore, had no occasion to weigh the equities in the manner prescribed here.
. The Court stayed its injunction for three days, but three days only. See Mem. & Order at 24. So this is not a case where Plaintiffs fall short of being prevailing parties for having failed to obtain a “direct benefit” from the judgment. See UFO Chuting, 508 F.3d at 1198.
Reference
- Full Case Name
- Daniel LEVIN v. CITY AND COUNTY OF SAN FRANCISCO
- Status
- Published