Martin v. Houston et al (JOINT ASSIGN)

Filing 56

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Houston's 46 motion to dismiss is GRANTED insofar as it seeks dismissal of this action as moot; 2) Houston's 46 motion to dismiss is DENIED insofar as it seeks vacatur of the court's prior orders; and 3) This case is DISMISSED without prejudice. Signed by Chief Judge William Keith Watkins on 12/23/2016. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RICKY MARTIN,
Plaintiff,
v.
RANDALL V. HOUSTON, in his
official capacity as district attorney
for Chilton County, Alabama,
Defendant.

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CASE NO. 2:14-CV-905-WKW
[WO]

MEMORANDUM OPINION AND ORDER
This case presents a constitutional challenge to Alabama Code § 45-11-82,
the so-called Chilton County Anti-Clustering Law. (See Doc. # 22.) After the denial
of the Rule 12(b)(6) motion to dismiss filed by Defendant Randall V. Houston
(“Houston”) (Doc. # 37), the Alabama legislature repealed the Anti-Clustering Law.
Houston’s second motion to dismiss followed hot on the repeal’s trail, and is before
the court today. (Doc. # 46.) Houston alleges that the repeal mooted this action,
requiring its dismissal and the vacatur of the orders entered in the case to date. He
is half-right: Although the repeal compels a finding that this case has become moot,
under these facts the court declines to grant the equitable remedy of vacatur.

I. JURISDICTION AND VENUE
At issue is whether this dispute presents a justiciable case or controversy such
that the court may exercise subject-matter jurisdiction. The parties do not contest
personal jurisdiction or venue.
II. STANDARD OF REVIEW
A Rule 12(b)(1) motion directly challenges the district court’s subject-matter
jurisdiction. Gilmore v. Day, 125 F. Supp. 2d 468, 470 (M.D. Ala. 2000). “Rule
12(b)(1) motions to dismiss for lack of subject matter jurisdiction can be asserted on
either facial or factual grounds.” Carmichael v. Kellogg, Brown & Root Servs., Inc.,
572 F.3d 1271, 1279 (11th Cir. 2009) (citing Morrison v. Amway Corp., 323 F.3d
920, 925 n. 5 (11th Cir.2003)). “Facial challenges to subject matter jurisdiction are
based solely on the allegations in the complaint. When considering such challenges,
the court must, as with a Rule 12(b)(6) motion, take the complaint’s allegations as
true.” Id. On the other hand, a “factual attack” challenges “jurisdiction in fact,
irrespective of the pleadings.” Morrison, 323 F.3d at 925. In a factual attack,
“matters outside the pleadings, such as testimony and affidavits, are considered.”
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (citation omitted).
Houston’s motion to dismiss raises a factual attack, as it stems from the AntiClustering Law’s repeal—a question of fact outside of the pleadings. See Morrison,
323 F.3d at 925. Accordingly, “no presumptive truthfulness attaches to [P]laintiff’s
2

allegations, and the existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional claims.” Lawrence, 919
F.2d at 1529 (citation omitted). The burden of proving jurisdiction falls on Plaintiff.
Underwriters at Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir.
2010) (“The party commencing suit in federal court . . . has the burden of
establishing, by a preponderance of the evidence, facts supporting the existence of
federal jurisdiction.”).
III. BACKGROUND
The court already detailed the facts and procedural history of this case in the
Memorandum Opinion and Order denying Houston’s prior motion to dismiss and
will expand on them only where relevant to its analysis. (See Doc. # 37 at 3–8);
Martin v. Houston, 176 F. Supp. 3d 1286, 1290–92 (M.D. Ala. 2016). However, the
intervening repeal of the Anti-Clustering Law merits further discussion.
Plaintiff Ricky Martin (“Martin”), the pastor of Triumph Church in Clanton,
Alabama, now finds himself free to resume his Christian ministry to homeless sex
offenders. On August 30, 2016, Governor Robert Bentley signed into law Alabama
Act No. 2016-466 (the “repeal”), an express repeal of the Anti-Clustering Law.
(Doc. # 46-1 at 6–7.) The repeal was passed during a special legislative session,
spending two days in the Senate and six days in the House before it was signed into
law. (Doc. # 54-8 at 2–3.) No legislative history or other “record of deliberation”
3

explains the legislature’s motivation in passing the repeal. (Doc. # 54 at 7.) The
repeal ended two years of legislative interference with Martin’s religious calling.1
Martin may welcome ASORCNA registrants into his congregation once again—and
indeed has professed his intent to do so.2 (Doc. # 46-2 at 2.) Some forty-eight hours
after the repeal’s enactment, Houston filed the motion to dismiss that is before the
court today. (Doc. # 46.)
IV. DISCUSSION
Houston claims in his motion that the repeal rendered moot Martin’s challenge
to the Anti-Clustering Law. (See generally Doc. # 46.) More than just dismissal,
Houston urges that the repeal compels the vacatur of the court’s prior orders in this
case. (Doc. # 46 at 5–9; see Docs. # 37, 45.) For his part, Martin contends that the
legislature repealed the Anti-Clustering Law to manipulate the court’s jurisdiction
and avoid paying his attorneys’ fees. (See generally Doc. # 54.) He further claims
that vacatur would be improper, both because “there is no judgment to eliminate”
and because Houston could have sought review of the orders sought to be vacated.
(Doc. # 54 at 8 n.6.) The questions of mootness and vacatur are discussed in turn.

1

To what extent District Attorney Houston is responsible for this piece of constitutionally
offensive legislation is not revealed in the record. He got busy getting it repealed, probably
because the Act required his services to enforce and because he was thus sued. One assumes the
Alabama Legislature also shares paternity.
2

The record is unclear as to whether Martin has already resumed his ASORCNA ministry.
4

A.

Mootness
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375, 377 (1994). Chief among the limits on federal
jurisdiction is the Article III edict that federal courts may only pass judgment on
“Cases” and “Controversies.” U.S. Const., art. III, § 2, cl. 1; see Lujan v. Defenders
of Wildlife, 504 U.S. 555, 559–60 (1992). “Because the judiciary is unelected and
unrepresentative, the Article III case-or-controversy limitation, as embodied in
justiciability doctrine, presents an important restriction on the power of the federal
courts.” Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998).
The court’s decision today rests on one branch of the doctrine of justiciability:
mootness.
“There must be a present, live controversy in order to avoid advisory opinions
on abstract propositions of law. When the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the outcome, the case has become
moot.” Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d
1301, 1309 (11th Cir. 2000) (alterations, internal citations, and quotation marks
omitted). “No matter how vehemently the parties continue to dispute the lawfulness
of the conduct that precipitated the lawsuit, the case is moot if the dispute ‘is no
longer embedded in any actual controversy about the plaintiffs’ particular legal
rights.’” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013) (quoting Alvarez v.
5

Smith, 558 U.S. 87, 93 (2009)). “Plainly, if a suit is moot, it cannot present an Article
III case or controversy and the federal courts lack subject matter jurisdiction to
entertain it.” Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328
(11th Cir. 2004) (citing Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001)
(per curiam)).
It takes no great feat of logic to find that this case no longer presents a live
controversy.

In his operative complaint, Martin sought only declaratory and

injunctive relief vis-à-vis the Anti-Clustering Law; he did not seek even nominal
damages. (See Doc. # 22 at 16.) With that law orphaned, there remains no “effectual
relief” that Martin may be granted. Knox v. Serv. Emps. Int’l Union, Local 1000,
132 S. Ct. 2277, 2287 (2012). And while Martin does ask for attorneys’ fees, this
alone will not sustain a justiciable claim. Lewis v. Cont’l Bank Corp., 494 U.S. 472,
480 (1990) (“[An] interest in attorney’s fees is, of course, insufficient to create an
Article III case or controversy where none exists on the merits of the underlying
claim.”). Thus, on first blush it would appear that this case is now moot.
But the analysis does not end there. “[I]t has long been the rule that voluntary
cessation of allegedly illegal conduct does not deprive the tribunal of power to hear
and determine the case, i.e., does not make the case moot.” Harrell v. Fla. Bar, 508
F.3d 1241, 1265 (11th Cir. 2010) (quoting Nat’l Advert. Co. v. City of Miami,
(“National II”), 402 F.3d 329, 1333 (11th Cir. 2005) (alteration and internal
6

quotation marks omitted). “Otherwise, a party could moot a challenge to a practice
simply by changing the practice during the course of the lawsuit, and then reinstate
the practice as soon as the litigation was brought to a close.” Jews for Jesus, Inc. v.
Hillsborough Cty. Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998). Therefore,
the standard for determining whether a defendant’s voluntary conduct has mooted a
case is a “stringent” one. Id. A case becomes moot only if later events make it
“‘absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.’” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export
Ass’n, 393 U.S. 199, 203 (1968)); see also Already, 133 S. Ct. at 727 (recognizing
the “formidable burden” posed by the voluntary cessation doctrine). “The heavy
burden of persuading the court that the challenged conduct cannot reasonably be
expected to start up again lies with the party asserting mootness.” Laidlaw, 528 U.S.
at 189 (citing Concentrated Phosphate, 393 U.S. at 203) (alteration and internal
quotation marks omitted).
Houston’s claim that the proper analytical framework is simple mootness
rather than voluntary cessation must be addressed before launching into the
voluntary-cessation inquiry. (See Doc. # 55 at 1–2.) Houston argues that the repeal
was the handiwork of the Alabama legislature and that he, a representative of a
separate branch of government, played no part in the repeal process. Therefore, he
7

continues, this case is “no different from a case where, say, one of the parties has
died.” (Doc. # 55 at 2.) Hogwash. This lawsuit is another chapter in the legal fiction
penned by Ex parte Young, 209 U.S. 123 (1908). The Eleventh Amendment bars a
direct suit against the State itself, leaving Houston as the only party against whom
Martin can seek to vindicate his rights. See Green v. Mansour, 474 U.S. 64, 68
(1985). To hold the voluntary-cessation framework inapplicable in this situation
would be to undermine federal enforcement of the Constitution against state
legislation; couching a legislative repeal as an external cause of mootness would
allow a state government to dodge judicial review willy-nilly, simply by repealing
challenged laws. The analysis thus proceeds under the voluntary-cessation rubric.
The Eleventh Circuit has sketched out a special set of rules that apply where
the defendant who claims to have changed his ways is a governmental actor. When
dealing with a governmental defendant, the court turns to a three-factor test to
determine whether the cessation of challenged conduct will moot the challenge. See
Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 531–32 (11th Cir. 2013). First, the
court must ask “whether the termination of the offending conduct was
unambiguous.” Id. at 531 (quoting Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents
of the Univ. Sys. of Ga., (“NABP”), 633 F.3d 1297, 1310 (11th Cir. 2011)). Second,
the court “look[s] to whether the change in government policy or conduct appears to
be the result of substantial deliberation, or is simply an attempt to manipulate
8

jurisdiction.” Id. at 532 (quoting NABP, 633 F.3d at 1310). And third, the court
“ask[s] whether the government has ‘consistently applied’ a new policy or adhered
to a new course of conduct.” Id. (quoting NABP, 633 F.3d at 1310). If the answer
to the first question is yes—i.e., if the governmental defendant unambiguously has
terminated the offending conduct—the court invokes a rebuttable presumption of
mootness.3 Jacksonville Prop. Rights Ass’n v. City of Jacksonville, Fla., 635 F.3d
1266, 1274–75 (11th Cir. 2011) (“[T]his Court has consistently held that a challenge
to a government policy that has been unambiguously terminated will be moot in the
absence of some reasonable basis to believe that the policy will be reinstated if the
suit is terminated.”) (quoting Troiano v. Supervisor of Elections in Palm Beach Cty.,
Fla., 382 F.3d 1276, 1285 (11th Cir. 2004)); see also Harrell, 608 F.3d at 1266.
Finally, to determine whether this so-called “Troiano presumption” attaches, the
court considers “the timing and content of the decision” to cease the conduct. Rich,
716 F.3d at 531 (quoting Harrell, 608 F.3d at 1266).
3

Arguably, this presumption burdens the party least likely to carry it. After all, if a change
in policy is a sham, who would know better than the policymaker? But the presumption reflects
sound considerations of federalism. “To adopt [the] view that mere repeal is insufficient to moot
a case would essentially put this court in the position of presuming that the [governmental
defendant] has acted in bad faith—harboring hidden motives to reenact the statute after we have
dismissed the case—something we ordinarily do not presume.” Fed’n of Advert. Indus.
Representatives, Inc. v. City of Chicago, 326 F.3d 924, 929 (7th Cir. 2003) (citing N.E. Fla.
Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 677 (1993)
(O’Connor, J., dissenting)). “At least in the absence of overwhelming evidence (and perhaps not
then), it would seem inappropriate for the courts either to impute such manipulative conduct to a
coordinate branch of government, or to apply against that branch a doctrine that appears to rest on
the likelihood of a manipulative purpose.” Clarke v. United States, 915 F.2d 699, 705 (D.C. Cir.
1990).
9

Accordingly, the analysis starts with asking whether the repeal brought an
unambiguous end to the challenged conduct—namely, the enforcement of the AntiClustering Law. The timing of the repeal informs this inquiry, Rich, 716 F.3d at
531, and hardly paints a rosy picture for the legislature. On April 6, 2016, the court
issued its Memorandum Opinion and Order denying Houston’s motion to dismiss.
(Doc. # 36.) Within a week, the parties began communicating about how to proceed
with the case in a manner that would expedite a final decision and, ultimately,
appellate review. (See generally Doc. # 54-1.) By April 22, the parties were
discussing whether the case could be settled.4 (Doc. # 54 at 4.) Martin’s claim for
attorneys’ fees emerged as a point of contention: Despite Houston’s request for a
waiver of fees, Martin insisted on settlement terms that provided for his counsel’s
compensation. (Doc. # 54 at 4.) Houston ultimately told Martin, via email, that
litigation would continue “if fees are important to you.” (Doc. # 54-3 at 2.) They
were, so the parties’ communication lapsed until mid-June. (See Doc. # 54-4.)

4

Martin correctly notes that these settlement talks are properly before the court. (See Doc.
# 54 at 4 n.1.) Although Federal Rule of Evidence 408(a) excludes evidence of “conduct or a
statement made during compromise negotiations” when introduced “to prove or disprove the
validity or amount of a disputed claim,” subsection (b) expressly allows the admission of such
evidence “for another purpose.” Fed. R. Evid. 408(a), (b); accord Fisk Elec. Co. v. Solo Constr.
Corp., 417 F. App’x 898, 902 (11th Cir. 2011). Martin offers evidence of these communications
to cast doubt on the timing of the repeal, not to prop up the validity of his claim. Accordingly,
they are admissible, and a proper subject of judicial consideration under the factual-attack standard
of review. See Lawrence, 919 F.2d at 1529 (explaining that courts may review “matters outside
the pleadings” on review of a factual attack to subject-matter jurisdiction).
10

Once it became clear that the case would not be dismissed5 and Martin would
not waive his claim for fees, the legislative gears began to grind into motion. Per
the Alabama Constitution, a local law like the Anti-Clustering Law or its repeal must
“be published at least once a week for four consecutive weeks” in the relevant
county. Ala. Const. art. IV, § 106. Houston’s office began the requisite publishing
cycle on May 19—hardly a month after the denial of the motion to dismiss. (Doc.
# 54-7 at 2.) Tellingly, the text of the proposed bill published in the Chilton County
News is exactly the same as the text of the law that was ultimately enacted, Alabama
Act No. 2016-466. (Compare Doc. # 54-7 at 2 with Doc. # 46-1 at 6.) In about a
month’s time, Houston’s litigation strategy shifted from seeking dismissal, to
seeking settlement, to seeking a legislative repeal.6 A scant three weeks separated
the publication of the bill and Martin’s stand on attorneys’ fees. And, because the

5

To be sure, at this point the court had not yet decided whether it had jurisdiction over
Martin’s RLUIPA claim. (See Doc. # 38 (ordering Martin, on April 6, 2016, to show cause why
the claim should not be dismissed for lack of subject-matter jurisdiction).) But after the court’s
April 6 denial of Houston’s motion to dismiss, wholesale dismissal of Martin’s action was no
longer on the table. (See Doc. # 37.)
The parties disagree on Houston’s role in bringing about the repeal, and whether it
properly may be characterized as his litigation strategy. Martin alleges that Houston “work[ed] to
secure the repeal of the challenged statute” (Doc. # 54 at 6), while Houston characterizes the repeal
as a wholly “external event[ ]” (Doc. # 55 at 2). Although the timing and greater context of the
repeal give it the look of a strategy pursued affirmatively by Houston, the court declines to order
additional briefing or evidentiary submissions on the matter. As explained below, the fact of a
legislative repeal requires a finding of unambiguous termination, thereby obviating the inquiry into
the timing and content of the decision to cease the challenged conduct. See Rich, 716 F.3d at 531;
cf. also Lawrence, 919 F.2d at 1529 (existence of factual disputes does not bar the court from
deciding a factual attack on its jurisdiction).
6

11

proposed bill was later enacted verbatim, it was likely the result of some degree of
deliberation—placing the decision to repeal even closer in time to Martin’s
insistence on fees. Given this timeline, the undersigned struggles to see the repeal
as anything other than an attempt to finagle out of paying Martin’s attorneys’ fees.
Such a finding would reflect the weight of precedent on voluntary cessation
by governmental actors. Courts tend to look askance at defendants who claim to
have changed their ways but only brought their conduct to an end after suit was filed.
See, e.g., Rich, 716 F.3d at 532 (casting doubt on policy change made only after suit
was filed and holding that the challenged conduct had not unambiguously
terminated); NABP, 633 F.3d at 1312 (holding that policy was not unambiguously
terminated, in part because its cessation was not announced until a hearing for a
preliminary injunction); Harrell, 608 F.3d at 1267 (noting that post-litigation change
in policy did not unambiguously terminate the challenged conduct); see also Jager
v. Douglas Cty. Sch. Dist., 862 F.2d 824, 833–34 (11th Cir. 1989) (pointing out that
a change in policy “[u]nder the imminent threat of the [plaintiffs’] lawsuit” evinced
ambiguity of termination). This is a logical stance: Post-suit cessation of conduct
is more likely a response to the suit than a true change of heart by the defendant.
This rationale is all the more convincing here, where the Anti-Clustering Law was
not repealed until after the denial of Houston’s first dispositive motion. The state

12

legislature, having already robbed Martin of his ASORCNA congregation, appears
to have passed the repeal to rob him of the compensation owed to his attorneys.
But, despite the apparent legislative skullduggery, Eleventh Circuit precedent
commands a finding of unambiguous termination.

The voluntary-cessation

jurisprudence puts particular credence in the lack of ambiguity in repealing a
statute—even when there are other reasons to doubt the defendant’s good faith. E.g.,
Harrell, 608 F.3d at 1266–67 (explaining that “a clandestine or irregular” decision
“to cease a challenged behavior” will not qualify as unambiguous cessation, unless
it takes the form of a statutory repeal). Indeed, when faced with the repeal of a
challenged statute, the Eleventh Circuit has applied the Troiano presumption without
further question or comment. See Coral Springs, 371 F.3d at 1328–29. This
generous grant of latitude jives with Supreme Court precedent, too. Time and again,
the Court has held that claims for injunctive relief become moot upon the repeal (or
amendment) of the challenged statute. E.g., Lewis, 494 U.S. at 474; Massachusetts
v. Oakes, 491 U.S. 576, 582–83 (1989); Princeton Univ. v. Schmid, 455 U.S. 100,
103 (1983) (per curiam); Kremens v. Bartley, 431 U.S. 119, 128–29 (1977);
Diffenderfer v. Cent. Baptist Church, Inc., 404 U.S. 412, 415 (1972). This precedent
compels a finding that the repeal of the Anti-Clustering Law brought an

13

unambiguous termination to the challenged conduct.7 The Troiano presumption
therefore attaches, and the court evaluates the remaining two factors to determine
whether Martin can carry the burden of persuasion.8
In his briefing, Martin did not argue that the third factor—the consistent
application of the new policy or course of conduct—militated against a finding of
mootness. (See Doc. # 54 at 3.) Thus, the matter hinges on whether the repeal
“appears to be the result of substantial deliberation, or is simply an attempt to
manipulate jurisdiction.” Rich, 716 F.3d at 532.

7

The parties make three additional arguments regarding the ambiguity, vel non, of the
repeal, but none change the result. First, Martin claims that Houston’s request for vacatur
demonstrates a desire “to be free to relitigate the same issues in the future.” (Doc. # 54 at 8.) But
Houston takes the air out of this argument by rightly pointing out that a vacatur principally serves
to limit the extent to which other opinions are influenced by the prior orders entered by the court.
(Doc. # 46 at 8.) Second, Martin uses the declaration of registered Alabama lobbyist Winston J.
Leavell to claim that “it would be easy” for the legislature to reenact the Anti-Clustering Law.
(Docs. # 54 at 7–8; 54-9.) This argument mistakes ease of action for likelihood of action and fails
to show ambiguity in the repeal of the Anti-Clustering Law. And third, Houston proffers his own
declaration claiming that no legislator ever suggested to him “that he or she would seek reenactment of [the Anti-Clustering Law] or a materially similar position.” (Docs. # 46 at 4–5; 461.) Absence of evidence is not evidence of absence; this, too, fails to persuade.
The Eleventh Circuit’s evolving voluntary-cessation jurisprudence remains unclear as to
how to proceed analytically after a finding of unambiguous cessation. However, the precedent
generally requires some showing of concrete evidence of the defendant’s bad faith or intent to
reenact the repealed law. E.g., National II, 402 F.3d at 1334 (requiring “evidence of a ‘substantial
likelihood’ that the challenged statute will be enacted” to avoid mootness); Coral Springs, 371
F.3d at 1333 (finding case moot absent “indication . . . that the [defendant] repealed its old Sign
Code in bad faith, intending to reinstate it later”). Thus, the court will evaluate whether “there is
some reason to believe that the [Anti-Clustering Law] may be reenacted after dismissal of the suit,”
as based on the remaining two factors and with the Troiano presumption of mootness in mind.
Coral Springs, 371 F.3d at 1329.
8

14

Martin claims that the legislative timeline and lack of legislative history show
that the repeal was not the product of deliberative reasoning. (Doc. # 54 at 6–8.) As
noted by Martin, “[t]he bill moved with lightning speed through the legislative
special session.” (Doc. # 54 at 6 n.8.) Between its first reading and ultimate passage,
the bill was before the Senate for two days and the House for six days. No bill passed
so hurriedly, Martin surmises, could have enjoyed substantial deliberation. (Doc.
# 54 at 7.) Houston, by contrast, looks at this same abbreviated schedule and finds
an overabundance of deliberation. He claims that the bill “survive[d]” committee
hearings, four weeks of newspaper publication, and legislative readings and votes;
it therefore passes muster. (Doc. # 55 at 5.) In other words, because the state
legislature followed its own procedures in enacting the repeal, the repeal must have
been the product of substantial deliberation. The undersigned disagrees. Although
courts have recognized an abandonment of procedures as a sign of jurisdictional
manipulation, e.g., Harrell, 608 F.3d at 1267, it does not follow that merely abiding
by proper procedures demonstrates substantial deliberation.9 Were that the case, all
legislation lawfully passed by the State of Alabama would clear the bar; repealing a

But see Jacksonville Prop. Rights Ass’n, 635 F.3d at 1275 (deriving minimal significance
from the fact that the defendant followed lengthy administrative procedures and opining that “[t]he
[defendant] is unlikely to jump through those bureaucratic hoops again”). The Jacksonville court
gave great weight to the defendant’s position, maintained throughout the entire litigation, that the
challenged law did not apply to bar the plaintiff’s conduct. Id. at 1273–75. Houston has made no
such assurance—which is unsurprising, given Martin’s allegation that the Anti-Clustering Law
was a bill of attainder—so the court refuses to treat mere compliance with legislative procedure as
proof of substantial deliberation.
9

15

law would automatically—rather than presumptively—moot a judicial challenge.
With that in mind, the court takes the repeal’s rapid passage as some evidence that
the legislature aimed to manipulate the court’s jurisdiction.
Martin further argues that the lack of legislative history shows a lack of
substantial deliberation. He points out that neither the bill nor Houston’s declaration
(Doc. # 46-1) gives any rationale for the repeal. Therefore, “[t]o the extent that there
was any legislative concern for safety (however baseless those concerns may have
been), . . . those concerns will remain the same as Pastor Martin re-establishes that
portion of his ministry.” (Doc. # 54 at 7.) This is convincing logic: Absent a change
in either the circumstances or the legislature’s reasoning, the repeal smacks of an
attempt to close the courthouse doors, not a reasoned re-charting of the legislature’s
path. But, in fairness, the Anti-Clustering Law itself also was enacted without
leaving a trace of legislative history. And more significantly, the court is leery of
creating precedent demanding extensive legislative history for a finding that a law
was the product of substantial deliberation. Regardless, the complete lack of any
“record of deliberation” by the lawmakers weighs in favor of a finding of
jurisdictional manipulation. (See Doc. # 54 at 7.)
But is this enough to rebut the Troiano presumption? A hard look at relevant
precedent suggests not. More than just “speculation that [Houston or the legislature]
may return to [their] previous ways,” Martin must adduce “concrete evidence of
16

secret intentions.” National II, 402 F.3d at 1334. Prior Eleventh Circuit and
Supreme Court cases inform whether Martin’s evidence regarding the timing and
speed of the repeal’s passage meets this burden.
Only twice has the Eleventh Circuit or the Supreme Court found a justiciable
case or controversy despite the repeal or amendment of a challenged law.10 City of
Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982); Nat’l Advert. Co. v. City of
Ft. Lauderdale, (“National I”), 934 F.2d 283 (11th Cir. 1991). National I offers only
minimal help: in finding that a billboard company’s challenge to Fort Lauderdale’s
sign code remained a live case or controversy after the code’s amendment, the court
reasoned simply that “[i]t remain[ed] uncertain whether the City would return the
sign code to its original form if it managed to defeat jurisdiction in this case.”
National I, 934 F.2d at 286. The court based this logic on the City’s “power and
authority to amend the sign code,” which it “presently possess[ed],” but also
remarked that the City failed to “establish[ ] that the likelihood of further violations
is sufficiently remote to dismiss National’s claims.” Id. Unlike under the Troiano
presumption, this analysis puts the burden on the defendant to prove mootness; that
portion of National I’s rationale does not control this decision. However, the

Both cases predate the Eleventh Circuit’s articulation of the Troiano presumption and
thus are of limited use in deciding whether Martin has rebutted the presumption. However, insofar
as Troiano clarified rather than overruled the Eleventh Circuit’s precedent on voluntary cessation,
these cases bind the court. They inform the voluntary-cessation inquiry by establishing a baseline
set of facts under which mootness is not justified.
10

17

“present[ ] possess[ion] [of] power and authority to amend” remains a pertinent
factor and weighs in Houston’s favor. Assuming, as Martin alleges, that Houston
directly caused the repeal of the Anti-Clustering Law—i.e., that Houston had the de
facto power to amend or repeal the law—he undeniably lacked, and lacks, the actual
authority to do so. Thus, while comparison to National I is only marginally helpful,
it tilts the scales in Houston’s favor.
Aladdin’s Castle is much more instructive and merits full discussion. In that
case, the City of Mesquite had passed an ordinance governing the operation of “coinoperated amusement establishments.” 455 U.S. at 285. Section 6 of the ordinance
required the chief of police to evaluate all applicants’ “connections with criminal
elements”; Section 5 prohibited the admission of children under the age of seventeen
into a licensed establishment, unless accompanied by a legal guardian. Id. at 286.
Aladdin’s Castle sought to open such an “amusement center” in a Mesquite shopping
mall, and the city government accommodated that aim by writing an age exemption
into Section 5 of the ordinance, requiring accompaniment by a legal guardian only
for minors under the age of seven. Id. However, Aladdin’s Castle was ultimately
denied a license after the chief of police concluded that the establishment had
“connections with criminal elements.” Id. at 287. Aladdin sued in state court, where
it obtained an injunction requiring the City to issue it a license. Id. Within a month
after complying with the state-court order, the City repealed the age exemption in
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Section 5 and defined the “connections with criminal elements” language in Section
6. Id. Aladdin then sued in federal court, seeking an injunction against enforcement
of the newly amended ordinance’s age restriction and criminal-elements
requirement. Id. at 287–88. The trial court upheld Section 6’s age restriction but
struck down Section 5’s criminal-elements language as unconstitutionally void; the
Fifth Circuit reversed the ruling on Section 6 and affirmed on Section 5. Id. at 288.
Before the Supreme Court could pass judgment on the matter, the City once again
amended the ordinance, this time eliminating the “connections with criminal
elements” language. The age restriction, however, stayed in place. Id. Reviewing
the matter for mootness, the Court held that a live controversy remained. Id. at 289.
Central to the Court’s reasoning were (1) the City’s prior gamesmanship with the
Section 6 age restriction and (2) the City’s brazen announcement at oral argument
that it would reenact the provision if the judgment were vacated. Id. at 289, 289
n.11. Thus, the Court found that “the city’s repeal of the objectionable language
would not preclude it from reenacting precisely the same provision if the District
Court’s judgment were vacated” and held that the matter was not moot. Id. at 289.
Aladdin’s Castle presents a high bar—one that Martin cannot clear.11
Although the Alabama legislature is similarly “not preclude[d] . . . from reenacting”

To be clear, the court does not read Aladdin’s Castle to set out minimum requirements
for a finding that voluntary cessation failed to moot a claim; even drawing the line well short of
the facts in Aladdin’s Castle, Martin’s claim has become moot. Regardless, the rarity of the
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the Anti-Clustering Law, id., the apparent jurisdictional shenanigans do not measure
up to the City of Mesquite’s unflinching disregard for the judiciary. There is no
open admission of intent to reenact, nor is there a history of gamesmanship from
which such intent could be inferred. Of course, the court cannot—and does not—
ignore the nefarious backdrop of the Anti-Clustering Law’s original enactment. But
absent the sort of indicia of manipulation seen in Aladdin’s Castle, the undersigned
trusts that the legislature has acted in good faith here—and indeed must presume that
it did, Troiano, 382 F.3d at 1285—even in the face of some circumstantial evidence
to the contrary.
A finding of mootness meshes with prior cases calling for “evidence
indicating that the government intends to return to its prior legislative scheme.”
National II, 402 F.3d at 1334; see also Coral Springs, 371 F.3d at 1329 (requiring a
showing of “a substantial likelihood that the challenged statutory language will be
reenacted” to avoid mootness); cf. Clarke, 915 F.2d at 705 (requiring “overwhelming
evidence” of manipulation). The evidence adduced by Martin is too speculative, too
abstract, and too circumstantial; it calls for too attenuated a chain of logic to find
that the state legislature would “return to its prior legislative scheme.” See National
II, 402 F.3d at 1334. Especially when considering this evidence in light of the

holding in that case—i.e., that a challenge to a law was not mooted by the law’s repeal—suggests
that the post-repeal survival of a live controversy requires similarly blatant evidence of
manipulative intent.
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Troiano presumption of mootness, the court has no choice but to find that the repeal
mooted this case.
Analogous Eleventh Circuit case law reinforces this result, too. Research
unearthed six decisions holding that a governmental defendant’s voluntary cessation
did not moot a claim for injunctive relief. Rich, 716 F.3d 525; NABP, 633 F.3d 1297;
Harrell, 608 F.3d 1241; Am. Civil Liberties Union v. Fla. Bar, 999 F.2d 1486 (11th
Cir. 1993); National I, 934 F.2d 283; Jager, 862 F.2d 824. Each of these cases held
(explicitly or implicitly) that the cessation was ambiguous and therefore are of
limited value to this analysis: ambiguity of cessation, by itself, justifies the claim’s
survival and distinguishes those cases from the unambiguous repeal of the AntiClustering Law. Rich, 716 F.3d at 532; NABP, 633 F.3d at 1311; Harrell, 608 F.3d
at 1267; Am. Civil Liberties Union, 999 F.2d at 1495; National I, 934 F.2d at 286;
Jager, 862 F.2d at 833–34. But in one case, the Eleventh Circuit went so far as to
say that the plaintiff’s claims would not be moot even if the Troiano presumption of
mootness were applied.12 NABP, 633 F.3d at 1311–12. That case, NABP, presents
the most compelling argument for the mootness of Martin’s claims. Not only did

The NABP court held that the challenged conduct “had not been unambiguously
terminated,” making improper the application of the Troiano presumption. 633 F.3d at 1311; see
Harrell, 608 F.3d at 1266 (explaining that the Troiano presumption only applies where the conduct
has been unambiguously terminated). The court’s assertion that the case was not moot even if the
presumption were applied is therefore dicta. But even if it does not bind the undersigned, it carries
ample persuasive strength. See Drummond Co. v. Collingsworth, 816 F.3d 1319, 1326 (11th Cir.
2016) (“[D]icta can be considered for whatever persuasive value it may have.”) (quoting Castillo
v. Sec’y, Fla. Dep’t of Corr., 722 F.3d 1281, 1291 (11th Cir. 2013)).
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the NABP defendant continue in his challenged conduct until the trial court held a
hearing for a preliminary injunction, he continued to challenge the illegality of the
conduct, announced his intention to later return to that course of conduct, and failed
to give a “reasoned basis for voluntarily ceasing the infringing conduct.” Id. at 1312.
Houston, by comparison, is a choirboy. Although he did not obtain the repeal until
after the court’s denial of his motion to dismiss, he no longer claims that the AntiClustering Law passed constitutional muster, and has done his best to convince the
court that he will continue to refrain from disrupting Martin’s ministry. (See Doc. #
46-1 at 1–3.) Houston’s entitlement to the Troiano presumption and the absence of
the sort of “overwhelming evidence” that would justify the “imput[ation] of such
manipulative conduct to a coordinate branch of government,” Clarke, 915 F.2d at
705, suffice to show that Martin’s claims are now moot. In light of the legislative
interference with Martin’s ministry—and the likely pivotal role played by Martin’s
suit in bringing about the repeal—the undersigned is reluctant to reach a result that
could deny Martin the attorneys’ fees that he claims. Eleventh Circuit precedent,
however, binds the court to a finding of mootness.
Even though the legislature managed to close the courthouse doors, it cannot
lock them shut. If the legislature were to put the Anti-Clustering Law back on the
books, Martin may reinstate his lawsuit. And if suit were reinstated, the defendant
would not be able to worm out of paying attorneys’ fees by obtaining a second
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repeal. Jews for Jesus, Inc., 162 F.3d at 630; see also National II, 402 F.3d at 1335.
Rather, “such ‘flip-flopping’ would create a reasonable expectation” that the law
would be reenacted, thereby precluding a finding of mootness and all but ensuring a
ruling on the merits. Jews for Jesus, Inc., 162 F.3d at 630.
B.

Vacatur
“The equitable remedy of vacatur ensures that ‘those who have been

prevented from obtaining the review to which they are entitled are not treated as if
there had been a review.’” Camreta v. Greene, 563 U.S. 692, 712 (2011) (quoting
United States v. Munsingwear, 340 U.S. 36, 39 (1950)). Vacatur “clears the path for
future relitigation of the issues between the parties and eliminates a judgment,
review of which was prevented through happenstance.” Munsingwear, 340 U.S. at
40. Because vacatur is an equitable remedy, it will be granted only if found to be in
the public interest. U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18,
26 (1994). “Judicial precedents are presumptively correct and valuable to the legal
community as a whole. They are not merely the property of private litigants and
should stand unless a court concludes that the public interest would be served by a
vacatur.” Id. at 26–27 (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.
Philips Corp., 510 U.S. 27, 40 (1993) (Stevens, J., dissenting)). The court concludes
that vacatur is not in the public interest, and that the repeal was not the product of
“happenstance.” See Munsingwear, 340 U.S. at 40. Accordingly, Houston cannot
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show “equitable entitlement to the extraordinary remedy of vacatur,” U.S. Bancorp,
513 U.S. at 26, and his request for vacatur will be denied.
The Supreme Court has long recognized “that the public interest is best served
by granting relief when the demands of ‘orderly procedure’ cannot be honored.” Id.
at 27 (internal citation omitted) (quoting Munsingwear, 340 U.S. at 41). Conversely,
“the public interest requires those demands to be honored when they can.” Id. As
explained by the Bancorp Court,
Congress has prescribed a primary route, by appeal as of right and
certiorari, through which parties may seek relief from the legal
consequences of judicial judgments. To allow a party who steps off the
statutory path to employ the secondary remedy of vacatur as a refined
form of collateral attack on the judgment would—quite apart from any
considerations of fairness to the parties—disturb the orderly operation
of the federal judicial system.
Id. Houston “step[ped] off the statutory path” in seeking a repeal of the AntiClustering Law rather than appellate review of the court’s orders. Equity frowns
upon a grant of vacatur premised on “mootness [caused] by voluntary action.” Id.
at 24. Moreover, given that the parties still hotly contest whether the repeal brought
about a permanent change in policy, the public interest is best served by keeping the
court’s orders on the books. The public interest therefore counsels against a grant
of vacatur, making that remedy improper.
Similarly—and as an alternative basis for this decision—the repeal was not
the product of happenstance, but rather resulted from Houston’s concerted effort to

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moot the issue and avoid paying attorneys’ fees. Vacatur protects parties from
judgments left unreviewed due to the “vagaries of circumstance”; it does not allow
a party to moot his own case, then turn around and ask the court to wipe clean the
slate of litigation. Camreta, 563 U.S. at 712 (citation omitted); cf. U.S. Bancorp,
513 U.S. at 24 (explaining that voluntary settlement of a case does not justify vacatur
of the orders entered in that case). Houston points to three appellate decisions that
he claims “recognize[ ] the propriety of vacatur in the event of a legislative repeal or
amendment.” (Doc. # 46 at 7); Khodara Envtl., Inc. ex rel. Eagle Envtl. L.P. v.
Beckman, 237 F.3d 186 (3d Cir. 2001); Valero Terrestrial Corp. v. Paige, 211 F.3d
112 (4th Cir. 2000); Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346
(D.C. Cir. 1996). These out-of-circuit decisions do not bind the court. Moreover,
none of the cited opinions confronted a repeal or amendment obtained with the
purpose of avoiding an adverse judgment, greatly reducing their persuasive value in
this case. Houston may have been able to obtain the repeal, but he will not obtain
vacatur of the court’s prior orders.
V. CONCLUSION
Accordingly, it is ORDERED as follows:
1.

Houston’s motion to dismiss (Doc. # 46) is GRANTED insofar as it

seeks dismissal of this action as moot;

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2.

Houston’s motion to dismiss (Doc. # 46) is DENIED insofar as it seeks

vacatur of the court’s prior orders; and
3.

This case is DISMISSED without prejudice.

A final judgment will be entered separately.
DONE this 23rd day of December, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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