Doe v. City of Albuquerque

Filing 51

[9922509] Appellee/Respondent's supplemental brief filed by Mr. John Doe. 7 paper copies to be provided to the court. Served on 11/29/2011. Manner of Service: ECF/NDA. BKE [Entered: 11/29/2011 04:28 PM]

Case No. 10-2102
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JOHN DOE,
Plaintiff-Appellee,
v.
CITY OF ALBUQUERQUE,
Defendant-Appellant,
_________________________________________________________________
On Appeal from the United States District Court
for the District of New Mexico
The Honorable M. Christina Armijo
United States District Judge
Case No. 08-CV-1041 MCA/LFG
__________________________________________________________________
APPELLEE JOHN DOE’S SUPPLEMENTAL BRIEF
Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.
__________________________________________________________________
ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, SCHOENBURG
& BIENVENU, LLP
Richard W. Hughes, Esq.
Brendan K. Egan, Esq.
500 4th Street NW, Suite 400
Albuquerque, NM 87102
[phone]

ACLU of NEW MEXICO
Laura Schauer Ives, Esq.
Managing Attorney
P.O. Box 566
Albuquerque, NM
[phone]

SANDERS & WESTBROOK, PC
Maureen A. Sanders, Esq.
Co-Legal Director ACLU of New Mexico
102 Granite Avenue, NW
Albuquerque, NM 87102
[phone]
OF COUNSEL

TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………….………………. ii
APPELLEE JOHN DOE’S SUPPLEMENTAL BRIEF ............................................... 1
RELEVANT FACTS ......................................................................................................... 1
I.

VOLUNTARY CESSATION ..................................................................... 3

II.

DEFENDANT-APPELLANT CITY REVISED EXECUTIVE
INSTRUCTION NO. 25 IN ORDER TO COMPLY WITH THE
DISTRICT COURT’S ORDER ................................................................ 5

III.

THE DEFENDANT-APPELLANT CITY WILL RETURN TO A
COMPLETE BAN ON SEX OFFENDERS’ USE OF CITY
LIBRARIES IF THIS APPEAL IS RESOLVED IN ITS FAVOR ........ 6

IV.

THE DEFENDANT-APPELLANT CITY’S VIGOROUS DEFENSE
OF THE CHALLENGED BAN ALSO PROVIDES CLEAR
INDICATION OF ITS INTENT TO RETURN TO THAT BAN IF
SUCCESSFUL ON APPEAL .................................................................... 8

V.

REVISED EXECUTIVE INSTRUCTION NO. 25 DOES NOT
SIGNIFICANTLY DIFFER FROM IT’S ORIGINAL
VERSION………………………………………………….………………8

IV.

VACATUR ................................................................................................... 9

CERTIFICATE OF DIGITAL SUBMISSION………………….....…………………11
CERTIFICATE OF SERVICE…………………………………..…………………....12

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TABLE OF AUTHORITIES
FEDERAL CASES
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) .......................................... 3
Burns v. PA Dep’t of Corr., 544 F.3d 279 (3d Cir. 2008) ................................................... 5
Camfield v. City of Oklahoma City, 248 F.3d 1214 (10th Cir. 2001) ............................. 4, 7
Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884 (10th Cir. 2008) .......... 3, 4
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) ........................................ 3
County of Los Angeles v. Davis, 440 U.S. 625 (1979) ........................................................ 4
Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167 (2000) 3, 4
Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115 (10th Cir. 2009) ............................ 9
Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010 ............................................... 4
Jordan v. Sosa, 654 F.3d 1012, 1037 (10th Cir. 2011)……………………………………3
Ne. Florida Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla.,
508 U.S. 656 (1993) ........................................................................................................ 8, 9
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) .......... 4, 8
Prier v. Steed, 456 F.3d 1209 (10th Cir. 2006) .................................................................. 3
Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) 4, 5, 7
R.M. Inv. Co. v. U.S. Forest Service, 511 F.3d 1103 (10th Cir. 2007) ............................... 3
Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004) ................................................ 10
Wyoming v. U.S. Dept. of Agr., 414 F.3d 1207 (10th Cir. 2005) ........................................ 9

STATUTES
NMSA 1978, § 14-2-1, et seq………………………………………………………………..2

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OTHER AUTHORITIES
Albuquerque City Charter, Art. V, § 3, § 4 .................................................................... 6, 7
Albuquerque City Charter, Art. IV, § 8 .......................................................................... 6, 7
City of Albuquerque Executive Instruction No. 1 .............................................................. 7
City of Albuquerque Executive Instruction No. 2 ................................................................7
Wright, Miller, Cooper, Discontinued Official Action, 13C Fed. Prac. & Proc. Juris.,
Supra note 22, § 3533.7 (3d ed) ............................................................................................5

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APPELLEE JOHN DOE’S SUPPLEMENTAL BRIEF
Pursuant to this Court’s October 20, 2011 Order for Supplemental Briefing on
whether Amended Executive Instruction No. 25 has mooted this appeal, PlaintiffAppellee John Doe respectfully submits that the instant case and appeal are not moot
because Defendant-Appellant City of Albuquerque only revised Executive Instruction
No. 25 to comply with the district court’s order granting Plaintiff-Appellee summary
judgment and will reinstate its complete ban against sex offenders if successful before
this Court. See Amended Executive Instruction No. 25 (as revised 5-6-2010), attached
hereto as Exhibit 1. Further, if the Court finds the case is moot, vacatur is not justified
because the case would not have been mooted by happenstance or the actions of the
prevailing party. Instead, the Defendant-Appellant City revised Executive Instruction
No. 25 with the explicit purpose of complying with the district court’s order pending the
instant appeal to this Court.
RELEVANT FACTS
In a February 6, 2008 meeting, the former mayor of Defendant-Appellant City of
Albuquerque (hereinafter “Defendant-Appellant City”) directed city librarians to ban sex
offenders from city libraries. See Appendix at 111. On March 4, 2008, the former mayor
formalized that ban through Executive Instruction No. 25. Id. at 205-06. John Doe filed
suit soon thereafter alleging that the executive instruction at issue violated his
constitutional rights.
On March 31, 2010, the district court granted Plaintiff-Appellee’s Motion for
Summary Judgment and enjoined the Defendant-Appellant City from enforcing the
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above-described instruction. See Appendix, at 246-47. Albuquerque’s current mayor,
Richard J. Berry, revised Executive Instruction No. 25 on May 6, 2010, a little more than
a month after the full ban was enjoined. See Exhibit 1. The revision was, by the
Defendant-Appellant City’s own account, “[i]n response to the court order in John Doe v.
City of Albuquerque, CV-1041 MCA/LGF.” See Exhibit 1. On April 28, 2010,
Defendant-Appellant City filed its notice of appeal in the district court. See Appendix at
248. On July 8, 2010, approximately two months after revising the executive instruction
at issue, Defendant-Appellant City filed its Brief-in-Chief before this Court (as later
amended and re-filed on August 11, 2010).
It appears that the City of Albuquerque has every intention of re-instating the full
ban on sex-offenders originally enacted on March 4, 2008 should the City prevail on
appeal. This intent to return to the previous ban is evidenced in a Memorandum written
by the manager of the Main Library, Cindy Williams, where she documents her response
to questions from library patrons regarding the revised administrative instruction
permitting limited access to city libraries: “I told them that the ABC Library System is
operating under a court order, that the current Order was being challenged by the City,
and that the Library was not able to change the policy.” May 14, 2010 Memorandum,
attached hereto as Exhibit 2.1

Exhibit 2 was obtained from Defendant-Appellant City in response to the undersigned’s request
to inspect public records under NMSA 1978, § 14-2-1, et seq. See May 26, 2010 Cover Letter,
attached hereto as Exhibit 3.
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I.

VOLUNTARY CESSATION

Plaintiff-Appellee’s claims have not been mooted by the Defendant-Appellant
City’s compliance with the district court’s order. Generally, “[t]o 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.” See, e.g., R.M. Inv. Co. v. U.S. Forest
Service, 511 F.3d 1103, 1107 (10th Cir. 2007) (quoting Arizonans for Official English v.
Arizona, 520 U.S. 43, 67 (1997)). See also Prier v. Steed, 456 F.3d 1209, 1213 (10th Cir.
2006) (“The crucial question [in determining mootness] is whether granting a present
determination of the issues offered will have some effect in the real world” (ellipses and
internal quotation marks omitted)).
“It is well settled that a defendant’s voluntary cessation of a challenged practice
does not deprive a federal court of its power to determine the legality of the practice,”
however. See, e.g., City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)
(holding that because a city could reenact a challenged ordinance if the case was mooted
by the city’s repeal of objectionable language in that ordinance, the challenging party’s
claims were not moot); Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc.,
528 U.S. 167, 189 (2000) (same). This rule protects litigants from temporary cessations
that have only been implemented to deprive the court of its jurisdiction. See, e.g., Jordan
v. Sosa, 654 F.3d 1012, 1037 (10th Cir. 2011); Chihuahuan Grasslands Alliance v.
Kempthorne, 545 F.3d 884, 892 (10th Cir. 2008). To protect litigants from a party
evading review through temporary cessation, “[t]he party asserting mootness bears the
heavy burden of persuading the court that the challenged conduct cannot reasonably be
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expected to start up again.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601
F.3d 1096, 1116 (10th Cir. 2010) (internal quotations and cites omitted). See also
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007)
(“Voluntary cessation does not moot a case or controversy unless ‘subsequent events
make it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur’” (quoting Friends of the Earth, 528 U.S. at 189)).
When the party asserting mootness is a governmental entity and the plaintiff is
challenging a since repealed or amended statute or administrative rule, this Court requires
clear indication of the entity’s intent to reenact the challenged law in order to avoid a
finding of mootness. See e.g., Rio Grande Silvery Minnow, 601 F.3d at 1116-1117
(“Indeed, in this governmental context, most cases that deny mootness rely on clear
showings by government actors and a desire to return to the old ways”) (internal
quotations and citations omitted); Camfield v. City of Oklahoma City, 248 F.3d 1214,
1223-24 (10th Cir. 2001). But even when a governmental entity has ceased a challenged
practice, the voluntary cessation of an alleged illegal practice that a “defendant is free to
resume at any time” will not moot a plaintiff’s claims. Chihuahuan Grasslands Alliance,
545 F.3d at 892. The interim relief must have “completely and irrevocably eradicated the
effects of the alleged violation.” Rio Grande Silvery Minnow, 601 F.3d at 1115 (internal
quotation marks omitted) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979)). See also Harrell v. The Florida Bar, 608 F.3d 1241, 1266 (11th Cir. 2010)
(“[T]he ‘timing and content’ of a voluntary decision to cease a challenged activity are
critical in determining the motive for the cessation and therefore ‘whether there is [any]
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reasonable expectation ... that the alleged violation will recur’ (citing Burns v. PA Dep’t
of Corr., 544 F.3d 279, 284 (3d Cir. 2008)).
Defendant-Appellant City’s revision of Executive Instruction No. 25 in the wake
of the district court’s ruling has not mooted this appeal because the City only acted to
comply with the district court’s order. Defendant-Appellant City will return to the
original instruction if the instant appeal is resolved in its favor, and its steadfast pursuit of
this appeal indicates the same. See Exhibit 2. Thus, all available evidence demonstrates
that it is not a mere possibility Defendant-Appellant City will return to a complete ban,
but a certainty should it prevail on appeal. Notwithstanding, Defendant-Appellant City’s
revised Executive Instruction No. 25 does not significantly alter the original version at
issue in this case and cannot be characterized as a voluntary cessation.
II.

DEFENDANT-APPELLANT CITY REVISED EXECUTIVE
INSTRUCTION NO. 25 IN ORDER TO COMPLY WITH THE
DISTRICT COURT’S ORDER

Defendant-Appellant City revised Executive Instruction No. 25 “[i]n response to the
court order in John Doe v. City of Albuquerque, CV-1041 MCA/LGF.” See Exhibit 1.
This Court has acknowledged that temporary compliance with a court order does not
moot an appeal. Rio Grande Silvery Minnow, 601 F.3d at 1119 (quoting Wright, Miller,
Cooper, Discontinued Official Action, 13C Fed. Prac. & Proc. Juris., Supra note 22, §
3533.7 (3d ed)). In this case, Defendant-Appellant City’s revision of the challenged
instruction amounts to nothing more than temporary compliance with the district court’s
order while on appeal. See Exhibit 2. This revision ostensibly complies with the district

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court’s order, but does not represent the Defendant-Appellant City’s final word on the
subject: it will reinstate the complete ban if successful on appeal to this Court.
III.

DEFENDANT-APPELLANT CITY WILL RETURN TO A
COMPLETE BAN ON SEX OFFENDERS’ USE OF CITY
LIBRARIES IF THIS APPEAL IS RESOLVED IN ITS FAVOR

In the instant case, Plaintiff-Appellee expects Defendant-Appellant City to plainly
state its intention to return to its complete ban against registered sex offenders if
successful on appeal in its supplemental brief. This position would be consistent with its
past representations— outlined in the above statement of the case—and its pursuit of this
appeal following revision of the challenged executive instruction. Further, because an
executive instruction is at issue and not legislation or an administrative order subject to
the protections of administrative procedure, the City can easily actualize its stated intent
to return to the complete ban. See Albuquerque City Charter, Art. V, § 3 (“The Mayor
shall control and direct the executive branch… The Mayor shall be the chief executive
officer with all executive and administrative powers of the city”); Art. V, § 4(k) (The
Mayor shall “[p]erform other duties not inconsistent with or as provided in this Charter”);
Art. IV, § 8 (“[T]he [Albuquerque City] Council shall not perform any executive
functions except those functions assigned to the Council by this Charter”). See also City
of Albuquerque Executive Instruction No. 1 (as revised on December 1, 2009 by Mayor
Richard J. Berry) (“All policy directives and guidance of the previous administration will
remain in effect and enforced, unless rescinded or amended by subsequent instructions”)
(attached hereto as Exhibit 4); City of Albuquerque Executive Instruction No. 2 (as
revised on December 1, 2009) (“The signature authority of the City of Albuquerque is
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vested in the Mayor as the Chief Executive of the City, unless otherwise delegated”)
(attached hereto as Exhibit 5).
In Camfield, 248 F.3d at 1223-24, this Court held that the mere possibility of
reenactment will not overcome a mootness determination unless it is absolutely clear that
a “legislature intends to reenact the prior version of the disputed statue.” Id. When a
body political, dependent on consensus and vote, discontinues a challenged practice, a
more rigorous showing is sensible as it is near impossible to predict future legislative
action. This Court has also applied the same reasoning to rules and regulations
promulgated under the Administrative Procedures Act. See, e.g., Rio Grande Silvery
Minnow, 601 F.3d at 1116-1117. The decision-maker in the instant case, however, is not
reliant on consensus or bound by administrative procedure, and Plaintiff-Appellee is
challenging an executive instruction, not a statute or administrative order. Under the
Albuquerque City Charter, the mayor is the chief executive officer and can issue
executive instructions so long as those instructions are consistent with the City’s Charter.
See Albuquerque City Charter, Art. V, § 3; Art. V, § 4(k); Art. IV, § 8. DefendantAppellant City adopted the original instruction with ease, responded to the Court’s Order
within a month of issuance, and can and would reinstate a complete ban if given the
opportunity.

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IV.

DEFENDANT-APPELLANT CITY’S VIGOROUS DEFENSE OF
THE CHALLENGED BAN PROVIDES CLEAR INDICATION OF
ITS INTENT TO RETURN TO THAT BAN IF SUCCESSFUL ON
APPEAL

Defendant-Appellant City filed its Brief-in-Chief approximately two months after
revising Executive Instruction No. 25. Had it intended to permanently settle for the new
limited access adopted in direct response to the district court’s order it would not have
appealed this case and refused to dismiss this appeal. In Parents Involved in Cmty. Sch.
v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007), the Seattle School District had ceased the
challenged practice of utilizing race as a tiebreaker to determine placement in city charter
schools while the issue was on appeal. But because the school district had vigorously
defended the constitutionality of this program on appeal and failed to demonstrate that it
would not resume the use of race in placement, the Supreme Court rejected a mootness
argument. Id. at 719. The timing of this appeal in relation to the Defendant-Appellant
City’s revised executive instruction makes clear Defendant-Appellant City’s intent to
return to its complete ban on registered sex offenders in city libraries if successful on the
merits before this Court.
V.

REVISED EXECUTIVE INSTRUCTION NO. 25 DOES NOT
SIGNIFICANTLY DIFFER FROM ITS ORIGINAL VERSION

If this Court finds that the evidence does not support Defendant-Appellant’s clear
intent to return to a complete ban if successful on appeal, the new iteration of Executive
Instruction No. 25 does not completely and irrevocably eradicate the effects of the
alleged violation and cannot, therefore, fairly be considered a voluntary cessation. See
Ne. Florida Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla.,
8

508 U.S. 656, 662 (1993) (the Court rejected the defendant City of Jacksonville’s
argument that its enactment of a substantially similar ordinance to the one originally at
issue had mooted plaintiff’s claims). Admittedly, the district court’s opinion in this case
emphasized that it only addressed the ban “as currently written.” See Appendix, at 246.
Still, Plaintiff-Appellee disputes that the amended Executive Instruction No. 25 differs
significantly from the old. Like the replacement ordinance in Ne. Florida Chapter of
Associated Gen. Contractors of Am., Defendant-Appellant City’s amended Executive
Instruction No. 25 is not a significant departure from the prior version the district court
found unconstitutional. Plaintiff-Appellee challenged the ban of registered sex offenders
in all city libraries. The new executive instruction only allows two days of access per
week to one of seventeen libraries in the city. See Exhibit 1. This very limited right of
use does not constitute an actual change in practice.
VI.

VACATUR

If the Court does find that Plaintiff-Appellees’ claims are mooted by DefendantAppellant City’s amended Executive Instruction No. 25, it should not remand with
instructions to the district court to vacate its opinion. “Vacatur is in order when mootness
occurs through ... the unilateral action of the party who prevailed in the lower court” or
happenstance. See Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1121 (10th Cir.
2009) (internal citation omitted); Wyoming v. U.S. Dept. of Agr., 414 F.3d 1207, 1213
(10th Cir. 2005). “Vacatur is generally not appropriate when mootness is a result of a
voluntary act of a nonprevailing party.” Wyoming v. U.S. Dept. of Agr., 414 F.3d 1207,
1213 (10th Cir. 2005).
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Applying these doctrines, in Tandy v. City of Wichita, 380 F.3d 1277, 1291-92
(10th Cir. 2004), this Court refused to vacate the lower court’s opinion even though it
found that the plaintiff’s claims had been mooted by the city defendant’s voluntary
cessation of practices found unconstitutional by the lower court. In so doing, the Tandy
Court noted that “vacatur [ ] is an equitable remedy, and a key consideration in
determining its appropriateness is whether the party seeking vacatur caused the mootness
through voluntary action.” Id.
In the case at bar, Defendant-Appellant City is the non-prevailing party and is the
sole cause of potential mootness. It has made clear its intent to return to the original ban
if successful on appeal. And it would certainly return to the ban if this Court orders
vacatur of the district court’s Order. It would be manifestly unjust to reward the City as
if Plaintiff-Appellee had not been successful below and leave Plaintiff-Appellee without
any protection in the future.

Respectfully submitted,
ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, SCHOENBURG & BIENVENU, LLP
/s/ Brendan K. Egan 11.29.2011
Richard W. Hughes
Brendan K. Egan
500 4th Street NW, Suite 400
Albuquerque, NM 87102
[phone]

10

AMERICAN CIVIL LIBERTIES UNION OF
NEW MEXICO
/s/ Laura Shauer Ives 11.29.2011
Laura Schauer Ives
Managing Attorney
P.O. Box 566
Albuquerque, NM 87103
[phone]
SANDERS & WESTBROOK, PC
Maureen A. Sanders
Co-Legal Director ACLU of New Mexico
102 Granite Avenue, NW
Albuquerque, NM 87102
[phone]
OF COUNSEL
Attorneys for Plaintiff-Appellee

CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that all required privacy redactions have been made and, with the
exception of those redactions, every document submitted in Digital Form or scanned PDF
format is an exact copy of the written document filed with the Clerk. I also certify that
the digital submissions have been scanned on November 29, 2011 for viruses with the
most recent version of a commercial virus scanning program Prevx 3.0 and, according to
the program, are free of viruses.
/s/ Brendan K. Egan
Brendan K. Egan

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on November 29, 2011, I filed the foregoing pleading
electronically through the CM/ECF system and caused the following parties and/or
counsel to be served electronically through the CM/ECF system. I also certify that on
November 30, 2011, I mailed seven (7) bound copies of the foregoing pleading by U.S.
Mail, postage prepaid, to the Tenth Circuit Court of Appeals, and one (1) bound copy has
been mailed by U.S. Mail, postage prepaid, to the following parties:

Gregory S. Wheeler &
Peter H. Pierotti
Assistant Albuquerque City Attorneys
P.O. Box 2248
Albuquerque, NM 87103
Attorneys for Defendant-Appellant

/s/ Brendan K. Egan
Brendan K. Egan

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