Walls et al v. Sumner County Board of Education
Filing
25
ORDER: Pltfs' 8 Motion for Preliminary Injunction is GRANTED in part and DENIED in part. It is ORDERED that deft shall refrain from carrying out a flat ban on communications between plts and deft, mandating that all communications be made betw een counsel for the two parties; Deft may only require communications to be made between counsel when the subjects of such communications relate to ongoing litigation between SCEA and deft in state court. Signed by Senior Judge John T. Nixon on 12/29/11. (rd)
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ALZENIA WALLS and SUMNER COUNTY
EDUCATION ASSOCIATION,
Plaintiffs,
v.
SUMNER COUNTY BOARD OF
EDUCATION,
Defendant.
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No. 3:11-cv-00848
Judge Nixon
Magistrate Judge Bryant
JURY DEMAND
ORDER
Pending before the Court is Plaintiffs Alzenia Walls’s (“Dr. Walls”) and Sumner County
Education Association’s (“SCEA”) Motion for Preliminary Injunction (Doc. No. 8) (“Motion”),
filed along with a Memorandum in Support (Doc. No. 9) and two supporting affidavits (Doc.
Nos. 10 & 11). Defendant Sumner County Board of Education filed a Response in Opposition
(Doc. No. 18), along with a supporting affidavit (Doc. No. 18-1) and other exhibits (Doc. No.
18-2). The Court held a hearing on Plaintiffs’ Motion on December 1, 2011. Thereafter,
Plaintiffs filed a Reply, responding to several arguments that Defendant raised for the first time
at the hearing. (Doc. No. 24.) For the reasons set forth below, Plaintiff’s Motion is GRANTED
in part and DENIED in part.
I. BACKGROUND1
A. Factual Background
1
The facts in this section are drawn from Plaintiffs’ First Amended Complaint (Doc. No. 7), unless otherwise noted.
1
SCEA is a voluntary association of professional employees of the Sumner County School
System (“School System”). Over the years, Plaintiffs allege that SCEA and Defendant were
parties to a number of collective bargaining agreements negotiated and ratified pursuant to
Tennessee’s Education Professional Negotiations Act (EPNA). The most recent agreement
covered a period through June 30, 2009; however, pursuant to EPNA, the terms of the agreement
remained in effect as SCEA and Defendant negotiated the terms of a successor agreement.
Plaintiffs allege that on October 14, 2010, Defendant “challenged” SCEA’s recognized status
under EPNA. Subsequently, on January 18, 2011, Defendant allegedly announced that it would
cease negotiating a new agreement with SCEA. Plaintiffs allege that Defendant then began to
implement unilateral changes in the terms and conditions of the School System’s employees,
including an increase in payroll deductions taken for health insurance and ceasing to take payroll
deductions for SCEA dues.
On February 1, 2011, SCEA filed suit in Sumner County Chancery Court and sought a
preliminary injunction against Defendant. In that action, SCEA alleged that Defendant failed to
negotiate in good faith and failed to substantiate SCEA’s alleged lack of majority status on
October 14, 2010, as Defendant was required to do pursuant to EPNA. On March 22, 2011, the
Sumner County Chancery Court granted SCEA a preliminary injunction that would require
Defendant to recommence good faith negotiations and cease implementing unilateral changes to
the terms and conditions of the School System’s employees.
On June 1, 2011, the Governor signed into law the Professional Educators Collaborative
Conferencing Act of 2011 (PECCA), which repealed EPNA and replaced its provisions with a
new statutory scheme. In particular, PECCA eliminated collective bargaining. (Doc. No. 9 at 2.)
Defendant then filed a motion to dismiss in Sumner County Chancery Court, which that court
2
granted on July 8, 2011 with respect to SCEA’s claims for injunctive relief on the grounds that
those claims were rendered moot by PECCA. SCEA’s claims for monetary relief remained in
place, however, and that case is still pending. (Id.)
On or about July 14, 2011, Dr. Walls, a teacher with the School System and current
President of SCEA, allegedly called Dr. Del R. Phillips III (“Director Phillips”), the current
Director of Schools for the School System. Dr. Walls requested that SCEA be allowed to
participate in the New Teacher In-Service, which it had done in prior years, by providing
information to new teachers about SCEA. Dr. Walls then allegedly sent a letter to Director
Phillips on July 19, 2011, reiterating her request. That same day, at one of Defendant’s
meetings, Plaintiffs allege that Dr. Walls approached Director Phillips in person to ask about her
request. Director Phillips allegedly conferred with an attorney for Defendant and told Dr. Walls
that SCEA would not be permitted to participate in the New Teacher In-Service. Also present
during this exchange between Dr. Walls and Director Phillips was Art Patterson, a UniServ
Coordinator with the Tennessee Education Association (“TEA”) who worked with SCEA, which
is an affiliate association of TEA. Mr. Patterson allegedly sent Director Phillips a letter on July
21, 2011, urging him to reconsider his decision to prohibit SCEA’s participation in the New
Teacher In-Service. Defendant asserts that its decision to bar SCEA from the New Teacher InService was due to the fact that it “was then, and remains, uncertain whether it would have been
appropriate or lawful for it to provide one professional employees[’] organization the exclusive
opportunity to access [the event] in the absence of any policy or procedure allowing other
professional employees[’] organization the opportunity to do the same.” (Doc. No. 18 at 2.)
On July 26, 2011, Director Phillips allegedly sent a letter to all School System teachers
stating that the Sumner County Chancery Court had determined that PECCA was constitutional
3
and replaced EPNA in its entirety. Director Phillips then allegedly declared that SCEA had no
right to do any of the following, among other things: use the school or its facilities for meetings,
posting of notices, or delivering mail among teachers; grant leave time due to holding SCEA
office or attending SCEA or TEA functions; participate in the “Committee on Education
Concerns”; represent teachers who were facing disciplinary action; participate in orientation or
in-service programs for new teachers; and solicit membership formally or informally during any
type of staff development meetings. Three days later, Director Phillips allegedly sent a
substantially similar letter to Mr. Patterson. According to Defendant, it prohibited SCEA from
engaging in the above-listed activities because it “no longer had the privileges outlined in the
letter due to the lapse of [Defendant’s] contract with . . . the SCEA,” a fact that was inadvertently
omitted from that letter and corrected in a subsequent letter sent on August 31, 2011.2 (Doc. No.
18 at 1.)
In accordance with a state provision requiring that complaints of unlawful acts first be
submitted to the local board of education, Tenn. Code Ann. § 49-5-606, Dr. Walls and seven
other employees who composed the SCEA Executive Board allegedly mailed a Complaint of
Unlawful Acts to Director Phillips and each member of Defendant on August 1, 2011. Two days
later, on August 3, 2011, Defendant’s attorney Arthur McClellan allegedly wrote a letter to
SCEA’s attorney, describing Dr. Walls and Mr. Patterson’s communications with Director
Phillips as “harassment,” threatening litigation against individual SCEA members, TEA, and
individual TEA members if they continued to communicate with Defendant or its
representatives, other than direct communications between counsel for the two sides. Mr.
2
Defendant’s Response gives July 31, 2011 as the date the follow-up letter was sent. However, the Court has been
unable to locate a letter with that date in the record, and believes instead that Defendant intended to refer to a letter
dated August 31, 2011. In this letter—which, as explained subsequently, was a response to SCEA’s Complaint of
Unlawful Acts—Mr. McClellan included the clarifying language Defendant references in its Response. (Doc. No.
7-11 at 3.)
4
McClellan allegedly sent a letter to Mr. Patterson on the same date, demanding that neither Mr.
Patterson nor TEA contact Defendant, its administration, or its staff. Again, Mr. McClellan
allegedly insisted that all communications be directed through TEA’s attorney.
The next day, SCEA’s attorney allegedly wrote Mr. McClellan, seeking clarification of
Defendant’s position as articulated in Mr. McClellan’s letter dated August 3, 2011. On August
5, 2011, Mr. McClellan sent a reply, allegedly stating that “[d]uring the pendency of this action
all communications of any form of any subject must be made through our respective offices.”
McClellan allegedly also stated that SCEA lacked legal standing under PECCA to take any
action because the collective bargaining agreement between the two parties had expired.
According to Defendant, the letters do not reflect a flat ban on all communications; rather, they
limited the ban to communications about state court litigation, which was clear given that the
letters all contained headings referring to the pending state court case. (Id. at 2.)
On August 31, 2011, Defendant allegedly answered the August 1 complaint letter filed by
Dr. Walls and her seven colleagues in the form of a letter sent by Mr. McClellan. In the month
between the filing of the complaint letter and Defendant’s answer to the letter, the school year
began. Plaintiffs allege that this period is critical for SCEA, as it is the time where SCEA and its
members make efforts to secure new members and retain existing ones. Plaintiffs allege that
Defendant did not communicate with SCEA about the substance of its complaint until the formal
response on August 31, and consequently, SCEA and its members were bound by the limits
imposed by Defendant in its letters dated July 26, 2011, August 3, 2011, and August 5, 2011
during the commencement of the school year.
SCEA subsequently sought permission to use facilities at Station Camp High School, part
of the School System, to hold a meeting. (Doc. No. 9 at 5.) On September 15, Defendant’s
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attorney responded with a letter stating that, in order for SCEA to use those facilities without
charge, SCEA would have to include “professional development and/or higher education
opportunities for its attendees” in the programming and SCEA would have to submit evidence
that such topics would be included in advance of any meeting. (Id. at 6.) Defendant, again,
disputes Plaintiffs’ characterization of this event. Defendant acknowledges that, in the past,
SCEA was allowed to use school facilities without having to submit an application for use due to
“the delicate nature of the situation and the ongoing litigation between the parties.” (Doc. No. 18
at 3.) However, Defendant argues that it is in no way violating SCEA’s rights at the current time
because SCEA has “refuse[d] to make [an] approved application for free use of its facilities.”
(Id. at 4.)
B. Procedural Background
Plaintiffs filed this action on September 7, 2011. (Doc. No. 1.) Plaintiffs thereafter filed
a First Amended Complaint (Doc. No. 7), which asserts claims pursuant to 42 U.S.C. § 1983 for
violations of their First Amendment rights of freedom of association, freedom of speech, and
freedom of petition, and their rights under the Fourteenth Amendment’s Equal Protection Clause.
(Id.) Plaintiffs also bring two state law claims under PECCA. (Id.)
Plaintiffs filed their Motion for Preliminary Injunction (Doc. No. 8), along with a
supporting Memorandum (Doc. No. 9) and two supporting affidavits (Doc. Nos. 10 & 11), on
October 7, 2011. Defendant filed a Response on November 15, 2011. (Doc. No. 18.) The Court
held a hearing on Plaintiffs’ Motion on December 1, 2011. That same day, the parties filed
transcripts of several depositions that had been taken on November 30, 2011 (Doc. Nos. 19-1,
19-2, & 20-1) as well as the parties’ pleadings in their state court case (Doc. Nos. 21-1, 21-2, 221, & 22-2).
6
Plaintiffs subsequently filed a Reply that exclusively responds to an argument Defendant
raised for the first time at the hearing—that SCEA did not properly authorize the filing of this
lawsuit, which Defendant pleaded as an affirmative defense in its Answer. (Doc. No. 24.)
Plaintiffs assert that, because Defendant did not raise this issue in its Response, the matter was
not properly before the Court (id. at 2), and further provide substantive analysis as to why
Defendant’s argument should be rejected (id. at 2-8). The Court agrees that the issue of whether
the suit was authorized by the correct body within SCEA is not properly before the Court.
Accordingly, the Court reserves judgment on this issue until a time when this argument has been
argued in a motion for summary judgment or otherwise been properly raised by Defendant.
II. LEGAL STANDARD
In determining whether to grant a preliminary injunction, the Court must consider four
factors:
“(1) whether the movant has a strong likelihood of success on the
merits; (2) whether the movant would suffer irreparable injury
without the injunction; (3) whether issuance of the injunction
would cause substantial harm to others; and (4) whether the public
interest would be served by the issuance of the injunction.”
Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011) (quoting Certified
Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007)).
These considerations are “‘factors to be balanced, not prerequisites that must be met.’” Certified
Restoration Dry Cleaning Network, 511 F.3d at 542 (quoting Jones v. City of Monroe, Mich.,
341 F.3d 474, 476 (6th Cir. 2003)). While the district court need not make specific findings
about each factor “‘if fewer factors are dispositive of the issue,’” id. (quoting Jones v. City of
Monroe, 341 F.3d at 476), “‘it is generally useful for the district court to analyze all four of the
7
preliminary injunction factors,’” id. (quoting Leary v. Daeschner, 228 F.3d 729, 739 n.3 (6th Cir.
2000)). Moreover, the Sixth Circuit has stated that “‘[w]hen a party seeks a preliminary
injunction on the basis of a potential violation of the First Amendment, the likelihood of success
on the merits often will be the determinative factor.’” Jones v. Caruso, 569 F.3d 258, 265 (6th
Cir. 2009) (alteration in original) (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288
(6th Cir. 1998)).
“A preliminary injunction is an extraordinary remedy which should only be granted if the
movant carries his or her burden of persuasion.” Avery Dennison Corp. v. Kitsonas, 118 F.
Supp. 2d 848, 851 (S.D. Ohio 2000) (citing Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th
Cir. 1978)). Moreover, “the proof required for the plaintiff to obtain a preliminary injunction is
much more stringent than the proof required to survive a summary judgment motion,” given the
nature of the remedy and the exercise of power required from the court. Leary, 228 F.3d at 739
(citations omitted).
III. ANALYSIS
Plaintiffs seek an injunction prohibiting Defendant, its management, and agents from
engaging in ten activities:
(1) limiting or restricting the right of SCEA members to
communicate with the Board or management personnel on the
same terms and under the same circumstances that other
employees or professional employees’ organizations are permitted
to do so;
(2) requiring that all communications from the SCEA or its
officials or members, at any time and on any subject, be conveyed
through counsel rather than in the ordinary course of business as
permitted by other professional employees or professional
employees’ organizations;
(3) barring all use of school buildings, facilities and equipment for
SCEA meetings or functions;
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(4) barring the posting of notices of SCEA activities or events on
teacher bulletin boards;
(5) barring the use of the school system’s inter-school mail or
bulletin boards for any SCEA purpose;
(6) barring the transacting of “any SCEA business” on school
property “at any time”;
(7) barring SCEA participation in new teacher orientation and/or
in-service programs; and barring solicitation of membership during
any form of staff development;
(8) barring SCEA representation of professional employees who
request such representation in disciplinary proceedings;
(9) prohibiting the Plaintiffs from having access at reasonable
times before and after the instructional day to areas in which
professional employees work; and
(10) imposing content restrictions or mandates upon the SCEA as a
condition of its charge-free use of school facilities for the conduct
of SCEA meetings.
(Doc. No. 8 at 1-2.)
Plaintiffs argue that all of these activities are protected by the First Amendment, the
Fourteenth Amendment’s Equal Protection Clause, and by PECCA. (Doc. No. 9 at 2.) They
assert that the federal rights at issue are the First Amendment rights to freedom of association,
freedom of speech, and freedom to petition for redress of grievances; and the Equal Protection
right to use school facilities “on the same terms as other non-profit organizations without the
imposition of compelled speech requirements as a condition of such use.” (Id. at 6.) Plaintiffs
similarly assert that the PECCA rights involved are the right to be free from interference or
restraint in joining SCEA and engaging in concerted activities; the right to access areas where
employees work “at reasonable times before or after the instructional day”; the right to use
school bulletin boards, mailboxes, or other methods of communication; the right to use facilities
pursuant to local board policy or procedures for community use for meetings to discuss rights
guaranteed by PECCA; the right to be free from discrimination in terms and conditions of
employment in a way designed to discourage SCEA membership; and the right to go onto school
9
property to contact employees in a manner and time that avoids interference with regular school
operations. (Id. at 6-7.)
A. Plaintiffs’ Likelihood of Success on the Merits
Plaintiffs point to four actions taken by Defendant with respect to their arguments about
the likelihood of their success on the merits: (1) Defendant’s blanket ban on communications
between it and SCEA and its representatives; (2) Defendant’s prohibition on SCEA and its
representatives communicating with new teachers; (3) Defendant’s requirements for facility use
as explained in its September 15, 2011 letter; and (4) Defendant’s violations of PECCA. The first
three actions relate to First and Fourteenth Amendment rights, while the fourth relates
specifically to substantive state law provisions. Accordingly, the Court will discuss the two
groups of issues separately.
1.
Plaintiffs’ First and Fourteenth Amendment Claims
Three bodies of law under the First Amendment are at issue in this case: freedom of
speech, freedom from retaliation for exercising First Amendment rights, and freedom of
association. With respect to restrictions on freedom of speech, the analytical starting point is to
determine whether such restrictions are content-based or content-neutral. Content-based
restrictions are subject to strict scrutiny and are presumed invalid. Carey v. Wolnitzek, 614 F.3d
189, 199 (6th Cir. 2010) (citations omitted). To withstand strict scrutiny, such restrictions “must
be narrowly tailored to promote a compelling [g]overnment interest,” and if a less restrictive
alternative is available to promote the government’s interest, that alternative must be used.
United States v. Playboy Entm’t Grp., 529 U.S. 803, 813 (2000) (citations omitted). The
government bears the burden of showing that “the alternative will be ineffective to achieve its
goals.” Id. at 816. On the other hand, content-neutral restrictions on speech, such as a time,
10
place, or manner restrictions are subject to intermediate scrutiny. Content-neutral restrictions
must be narrowly tailored to a substantial government interest and must not burden substantially
more speech than is necessary to further that interest. Richland Bookmart, Inc. v. Knox Cnty.,
Tenn., 555 F.3d 512, 522 (6th Cir. 2009). Finally, time, place, and manner restrictions must
“contain adequate standards to guide [an] official’s decision and render it subject to effective
judicial review.” Thomas v. Chi. Park Dist., 534 U.S. 316, 323 (2002) (citing Niemotko v.
Maryland, 340 U.S. 268, 271 (1951)).
The free speech analysis also depends on the forum where such regulation of speech is
taking place. The Sixth Circuit has determined a public school to constitute a non-public forum,
M.A.L. v. Kinsland, 543 F.3d 841, 847 (6th Cir. 2008), where restrictions on speech must be
viewpoint neutral and “‘reasonable in light of the purpose served by the forum,’” United States v.
Kokinda, 497 U.S. 720, 730 (1990) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473
U.S. 788, 806 (1985)). Moreover, restrictions must “‘not [be] an effort to suppress expression
merely because public officials oppose the speaker’s view.’” Id. (quoting Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).
Second, public employers are prohibited from retaliating against their employees on the
basis of First Amendment protected activities. Scarbrough v. Morgan Cnty. Bd. of Educ., 470
F.3d 250, 255 (6th Cir. 2006) (citing Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v.
Bd. of Educ., 391 U.S. 563 (1968)). The Sixth Circuit employs a two-part inquiry when
analyzing such retaliation claims: first, the court must determine “‘whether the employee’s
speech may be fairly characterized as constituting speech on a matter of public concern.’” Id.
(quoting Rose v. Stephens, 291 F.3d 917, 920 (6th Cir. 2002)). “Matters of public concern
include speech that relates to any matter of political, social, or other concern to the community.”
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Id. at 256 (citing Rankin v. McPherson, 483 U.S. 378, 383 (1987); Connick, 461 U.S. at 146).
This is “‘determined by the content, form, and context of a given statement, as revealed by the
whole record.’” Farhat v. Jopke, 370 F.3d 580, 589 (6th Cir. 2004) (quoting Connick, 461 U.S.
at 147-48). The entire speech need not address a matter of public concern; it is sufficient that
some portion of the speech does so. Id. (citing Connick, 461 U.S. at 149). If the speech in
question does relate to a matter of public concern, the balancing test articulated by the Supreme
Court in Pickering v. Board of Education applies. Scarbrough, 470 F.3d at 255. Pursuant to
Pickering, courts must determine whether the employee’s “interest in engaging in such speech
outweighs the [employer’s] interest ‘in promoting the efficiency of the public services it
performs through its employees.’” Id. at 257 (quoting Pickering, 391 U.S. at 568).
Finally, the Supreme Court “has recognized a right to associate for the purpose of
engaging in those activities protected by the First Amendment – speech, assembly, [and] petition
for the redress of grievances.” Roberts v. Untied States Jaycees, 468 U.S. 609, 618 (1984). The
“‘right of expressive association,’ i.e., the ‘right to associate for the purpose of speaking[,]’ . . .
protects against laws that make ‘group membership less attractive’ without ‘directly interfer[ing]
with an organization’s composition.’” Miller v. City of Cincinnati, 622 F.3d 524, 537 (6th Cir.
2010) (second alteration in original) (quoting Rumsfeld v. Forum for Academic & Inst. Rights,
Inc., 547 U.S. 47, 68, 69 (2006)). There is a three-step process for such expressive association
claims: first, a court must determine “whether a group is entitled to protection”; second, a court
must determine whether the government action “‘significantly burden[s]’ the group’s
expression,” giving deference to the group’s “‘view of what would impair its expression’”; and
third, a court must balance “the government’s interest in any restriction . . . against the plaintiff’s
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right of expressive association.” Id. (alteration in original) (citing and quoting Boy Scouts of Am.
v. Dale, 530 U.S. 640, 655, 653, 656 (2000)).
Moreover, under the Equal Protection Clause of the Fourteenth Amendment,
classifications that affect fundamental rights are subject to strict scrutiny. Lac Vieux Desert
Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Bd., 172 F.3d 397, 410
(6th Cir. 1999). The right to freedom of speech under the First Amendment is just such a
fundamental right. Barden Detroit Casino, L.L.C. v. City of Detroit, 230 F.3d 848, 855 (6th Cir.
2000) (citing Band of Lake Superior Chippewa Indians, 172 F.3d at 410). “Under strict scrutiny,
a regulation infringing upon a fundamental right will only be upheld if it is narrowly tailored to
serve a compelling state interest.” Dubay v. Wells, 506 F.3d 422, 429 (6th Cir. 2007) (citing
Reno v. Flores, 507 U.S. 292, 305 (1993)).
a. Defendant’s Prohibition on Contact
Plaintiffs first argue that Defendant’s blanket prohibition on contact between it and
SCEA or its representatives, under the threat of litigation, violates Plaintiffs’ First Amendment
rights of free speech, free association, and petition. (Doc. No. 9 at 10.) Plaintiffs assert that,
because the prohibition is “unlimited in scope,” it therefore affects speech on matters of public
concern. (Id. at 11.) Plaintiffs then argue that the existence of prior and ongoing litigation
between SCEA and Defendant in state court does not serve as a compelling government interest
that would justify such an infringement of Plaintiffs’ First Amendment rights because
Defendant’s prohibition is a “ban on all speech about any subject.” (Id.) Hypothetically,
however, Plaintiffs argue that if Defendant’s purpose had been to “avoid inadvertent
communications” regarding the state suit, and assuming that such a purpose would satisfy the
compelling government interest requirement, then the ban would nevertheless fail the First
13
Amendment test because such a ban is in fact the most restrictive, rather than the least restrictive,
means of achieving that purpose. (Id. at 11-12.)
Plaintiffs also explain that this flat ban imposed on SCEA may give rise to an Equal
Protection challenge. (Id. at 12 n.7.) Plaintiffs note that, while they believe that this ban has
only been imposed on SCEA and its members, they cannot be assured of that suspicion until
discovery has been conducted. (Id.) If they are correct, Plaintiffs argue that they will have a
claim concerning “differential treatment with respect to a fundamental right, i.e. speech,” which
will be subject to strict scrutiny. (Id.) With respect to this Equal Protection analysis, Plaintiffs
reassert that the existence of ongoing litigation would similarly fail to be a compelling
governmental interest, and thus Plaintiffs would be likely to succeed on the merits on this
potential Equal Protection claim. (Id.)
Defendant’s Response asserts that there is no flat ban on communication. Instead,
Defendant argues that the ban on communications implemented through its correspondence
simply covered communications relating to the ongoing state court litigation. (Doc. No. 18 at 7.)
With respect to the specific language in the August 3, 2011 letter, Defendant claims that this
“harsh language” should be viewed “in the context of a series of repeated requests and refusals to
communicate through counsel regarding the decision surrounding the New Teacher [InService].” (Id.) Moreover, Defendant points to the fact that all such letters sent to Plaintiffs
contained a “‘Re:’ statement clearly identifying the prior litigation as the subject matter of the
letters.” (Id. at 8.) Consequently, without providing any substantive First Amendment analysis,
Defendant argues that Plaintiffs have a low likelihood of success on the merits with respect to
this claim. (Id.)
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As an initial matter, the Court finds that Defendant has mischaracterized the ban on
communications. While Defendant is correct that the letter contains a “Re:” line referring to the
state court case (Doc. No. 7-10 at 1), and Defendant’s desire that “the parties communicate
through counsel on matters related to the [state court] litigation” (Doc. No. 18 at 7) may be a
common sense strategy for attorneys, Defendant’s position that the ban was limited to
communications about the state court case is simply unsupported by the letter itself. Mr.
McClellan’s August 5, 2011 letter to Plaintiffs’ counsel clearly reads: “During the pendency of
this action all communications of any form on any subject, must be made through our respective
offices.” (Doc. No. 7-10 at 1.) The Court fails to understand how such a plain statement can
constitute anything but a flat ban on communications between SCEA and Defendant.
Moreover, the Court is not persuaded by Defendant’s position that such a prophylactic
ban “did not occur” (Doc. No. 18 at 7), an argument that Defendant reasserted at the hearing,
noting that Dr. Walls allegedly gave a speech at a recent Board meeting about teacher
evaluations. As such, Defendant argues that a preliminary injunction is not necessary. Again, it
is clear from Mr. McClellan’s August 5, 2011 letter that the ban, as written, covers all
communications on any subject, and thus this argument will not affect the Court’s analysis.
Lastly, the Court takes note of an argument that counsel for Plaintiffs made at the
hearing. In contesting Defendant’s characterization of the ban, Plaintiffs argued that, if
Defendant is truthful in stating that it intended to only ban communications regarding the state
court lawsuit, then an injunction barring Defendant from carrying out a total ban on
communications would not harm Defendant. The Court agrees with this assessment. By limiting
Defendant to a ban only on communications related to the litigation, the Court would, in effect,
be reinforcing what Defendant says it has already done.
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Accordingly, in light of the plain language of the August 5, 2011 letter, the Court will
treat Defendant’s ban on communications as a total ban on communications for the purposes of
the First Amendment analysis, to which the Court now turns.
“Deciding whether a particular regulation is content based or content neutral is not
always a simple task.” Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994). Generally
speaking, “laws that by their terms distinguish favored speech from disfavored speech on the
basis of the ideas or views expressed are content-based.” Id. at 643 (citations omitted). On the
other hand, “laws that confer benefits or impose burdens on speech without reference to the ideas
or views expressed are in most instances content-neutral.” Id. (citations omitted). For example,
in Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, the Supreme
Court held that an ordinance that prohibited the posting of signs on public property was contentneutral, stating that “the ordinance is neutral – indeed it is silent – concerning any speaker’s
point of view.” 466 U.S. 789, 804 (1984).
With this in mind, the Court finds that Defendant’s ban on communications should be
treated as a content-neutral restriction on Plaintiffs’ speech. Of course, the ban is not a time,
place, or manner restriction—those that are most often considered content-neutral restrictions—
but the ban is plainly not content-based, as all communications on any topic are subject to the
ban. The fact that the ban is limited to a certain group of people such as SCEA does not change
this analysis, as the ban quite obviously does not target a particular type of content, and can
include a range of topics on which Plaintiffs may want to communicate with Defendant. In light
of the content-neutrality of the ban, therefore, the ban must be narrowly tailored to a substantial
government interest and must not burden substantially more speech than is necessary to further
that interest. Richland Bookmart, Inc., 555 F.3d at 522.
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The only governmental interest to which Defendant has even tangentially referred would
be to prohibit Plaintiffs from communicating with Defendant about the SCEA and Defendant’s
state court litigation and the implementation of PECCA. (Doc. No. 18 at 7.) Even if
Defendant’s interest in avoiding inadvertent communications relating to pending litigation would
be determined to be “substantial,” an all-out ban on communications quite clearly burdens
substantially more speech than is necessary to further this interest. Defendant could have limited
communications to the topics of the ongoing state court litigation, which, Plaintiffs argued at the
hearing, are simply claims for damages due to Defendant’s increase in insurance premiums
teachers were required to pay and Defendant’s refusal to deduct SCEA dues from teachers’
paychecks, thus resulting in SCEA’s loss of dues.3 Instead, Defendant imposed an all-out ban on
communications.
At this juncture, the Court notes that Plaintiffs have also asserted that the
communications ban interferes with their right to free association, but have provided no
substantive analysis of that issue (Doc. No. 9 at 10-12), other than generally outlining the legal
standard for such claims (id. 9-10). Defendant similarly fails to provide argument as to this
claim. (See Doc. No. 18 at 7-8.) Because the Court finds that Plaintiffs are likely to succeed on
one of their substantive arguments about Defendant’s flat ban, the Court finds it unnecessary to
develop the merits of a potential claim for infringement of Plaintiffs’ right to freely associate
under the First Amendment. Furthermore, Plaintiffs have made an Equal Protection argument
3
At the hearing, Defendant contended that the constitutionality of PECCA is still undecided by the state court and
thus is also a topic of the litigation. Plaintiffs disputed this characterization, arguing that the state court already
determined PECCA to be constitutional, and thus Defendant’s argument is based only on the possibility that the
result may change on appeal. However, Defendant has provided a copy of the state court ruling, which clearly
shows a finding that PECCA was constitutional. (Doc. No. 18-2 at 7.) Moreover, other documents in the record
show that Defendant previously admitted that the state court so ruled as to PECCA’s constitutionality. (Id. at 10;
Doc. No. 7-4.) Given that the state court has issued a final ruling as to the constitutionality of PECCA, and that
Defendant has admitted as much on the record, the Court agrees with Plaintiffs that only two damage claims remain
pending in state court.
17
with respect to this issue, pending future discovery. At this point, given that Plaintiffs have not
been able to provide concrete evidence that other specific groups have been treated differently
than SCEA, the Court will not entertain such arguments. Should Plaintiffs uncover such
evidence during this litigation, the Court will revisit this claim at a more appropriate time.
In light of the foregoing analysis, therefore, the Court finds that Plaintiffs have
demonstrated a strong likelihood of success on the merits with respect to their First Amendment
free speech claim on Defendant’s flat ban on communications. The Court now turns to
Plaintiffs’ other substantive claims.
b. Prohibition on Plaintiffs’ Contact with Teachers
Plaintiffs also argue that they are likely to succeed on the merits with respect to
Defendant’s prohibition on SCEA’s participation in the New Teacher In-Service. (Doc. No. 9 at
12.) Plaintiffs assert that SCEA only desired to speak with new teachers during breaks and at an
SCEA-provided breakfast, set up materials in the hall outside the event, and set up a “store”
where teachers could purchase school supplies, none of which would have interfered with the
event. (Id.) Plaintiffs argue that the July 26, 2011 letter Defendant sent to all teachers, and its
August 31, 2011 response to Plaintiffs’ Complaint of Unlawful Acts, highlight the “contentbased nature of [the] restriction on . . . Plaintiffs’ speech and on the unfettered discretion
exercised by [Defendant] in regulating Plaintiffs’ speech.” (Id. at 12-13.) In particular, Plaintiffs
point out that Mr. McClellan stated that only certain types of content would be allowed in SCEA
use of school bulletin boards: “professional development opportunities, higher educational
opportunities, and/or individual school employee or school celebration/information.” (Id. at 13.)
Plaintiffs contend that Defendant continued this content-based restriction on September 15,
18
2011, when Mr. McClellan imposed certain requirements on SCEA in order to use school
facilities free of charge. (Id. at 13-14.)
Plaintiffs also point to Defendant’s statement in the August 31, 2011 letter that SCEA
would be prohibited from sending “blast emails or using teachers’ school system email
addresses” as well as sending emails during the school day. (Id. at 14.) By contrast, Plaintiffs
argue, Defendant has allowed the “Tennessee Religions Freedom Fund” to send emails to
teachers during the school day on school system email addresses. (Id.) According to Plaintiffs,
this organization was formed as a response to a lawsuit filed by the ACLU against Defendant to
raise money for “defending against federal lawsuits from the ACLU and similar anti-liberty and
anti-religion organizations.” (Id.)
Plaintiffs assert that Defendant’s restrictions on speech, whether in the form of restricting
content or compelling certain content, fails to withstand strict scrutiny under the First
Amendment. (Id. at 15.) Plaintiffs argue that Defendant lacks a compelling interest in requiring
SCEA to include certain content in its programs as a condition to using school facilities at no
cost and in limiting the content of SCEA’s use of school bulletin boards. (Id.) Plaintiffs argue
that no such bulletin board restrictions are contained in PECCA or in Defendant’s official
policies, and thus the policy was imposed solely on SCEA. (Id.)
Finally, Plaintiffs argue that the “best analysis for” Defendant would be that the
restrictions constitute time, place, and manner restrictions on speech. (Id.) Plaintiffs assert,
however, that this framework is inapplicable to Defendant’s ban on SCEA’s communications
because “the restrictions are indeed content-based” in that “SCEA has been singled out for these
restrictions.” (Id. at 16.) Had Defendant truly had a substantial governmental interest in these
restrictions, as it is required to have under the intermediate scrutiny analysis for time, place, and
19
manner restrictions on speech, Defendant would have had the ban extend to all organizations, not
simply SCEA. (Id.)
In response, Defendant argues that the prohibitions cited by Plaintiffs are reasonable
restrictions. Defendant states that it prohibited SCEA from participating in the New Teacher InService as part of a general plan “to have no professional employee[s’] organization” participate
in the event. (Doc. No. 18 at 8.) Defendant asserts that it decided to do so because it had yet to
“formulate[] a policy allowing for equal access by an interested professional employees[’]
organization” in the wake of the passage of PECCA, and it wanted to avoid any liability that may
have followed from allowing SCEA to have exclusive access to the event. (Id.) Defendant also
asserts that injunctive relief would be inappropriate with respect to the New Teacher In-Service
claim because the event is over, and thus Defendant will have sufficient time to formulate a
policy as to organizations’ participation in next year’s event. (Id. at 10.)
With respect to communications, Defendant again responds that its restrictions are
reasonable. Defendant asserts that “no organizations are guaranteed use of the school’s internal
mail systems during the instructional day,” as they “are reserved by the schools and [Defendant]
for matters related to school business during the instructional day.” (Id. at 11.) While SCEA had
been allowed use of the mail systems in the past, Defendant argues that such use was pursuant to
the collective bargaining agreement previously in place. (Id.) Following the lapse of that
agreement, Defendant argues that SCEA is now subject to the same treatment as everyone else:
they are “allowed by policy to use the physical mailboxes prior to and after the instructional day
for unrestricted dissemination of information.” (Id.) In terms of Defendant’s email system,
Defendant argues that it “has an across-the-board policy forbidding any outside organization or
individual from using its internal email system to send ‘blast’ emails to all teachers in the
20
system.” (Id. at 13.) Defendant asserts that the email sent by the “Tennessee Religions Freedom
Fund” was an unsolicited email that was not approved by Defendant, and thus it cannot serve as
a basis for Plaintiffs’ constitutional claims. (Id. at 13-14.) Finally, as to the bulletin boards,
Defendant again states that it has a blanket policy allowing professional employee[s’]
organizations to access the boards before and after the school day. (Id. at 15.) While SCEA
“enjoyed the use of a dedicated bulletin board” as part of its contract prior to the implementation
of PECCA, Defendant argues that “nothing has changed” under the new policy except that
SCEA no longer has access to a bulletin board of its own. (Id.)
At the hearing, counsel for Plaintiffs disputed Defendant’s characterization that the
change in treatment of SCEA was simply due to the expiration of the parties’ collective
bargaining agreement. Rather, counsel asserted that the July 26, 2011 letter clearly referred to
activities that were not rights under the collective bargaining agreement, such as SCEA’s ability
to participate in the New Teacher In-Service event.
Having examined a copy of the collective bargaining agreement that Plaintiffs have filed
with the Court, it is clear that both Plaintiffs and Defendant are correct in certain respects as to
whether the restrictions were tied to specific contract rights. In their Motion, Plaintiffs object to
nine of the sixteen restrictions imposed in the July 26, 2011 letter as a result of the state court
ruling that PECCA was constitutional. (Doc. No. 9 at 3-4.) These restrictions, as written in the
original letter, read as follows:
Because of the ruling, the Sumner County Board of Education has
no obligation to perform; and the Sumner County Education
Association (SCEA) has no right to any of the following:
[1] - use of school buildings, facilities and equipment for SCEA
meetings or functions;
[2] - the posting of notices of activities and/or events on teacher
bulletin boards;
21
[3] - use of the school system’s regular inter-school mail delivery
system (email) and/or teachers’ bulletin boards for any purpose;
[4] - transacting any SCEA business on school property at any
time;
....
[5] - granting of specific leave time due to holding SCEA office or
attending SCEA/TEA (Tennessee Education Association)
functions;
[6] - participation in the “Committee on Education Concerns;”
[7] - representation of teachers reprimanded, warned, or
disciplined;
....
[8] - participation in new teacher orientation and/or teacher inservice programs; [and]
[9] - solicitation of membership formally or informally during any
form of staff development[.]
(Doc. No. 7-4 at 1.)
Defendant’s assertion that the rights now restricted by this letter were originally contract
rights is correct for the first seven of the nine restrictions to which Plaintiffs object. The Court
has found references to SCEA’s right to use facilities (Doc. No. 21-2 at 19 ¶ A), post notices on
school bulletin boards (id. at 19 ¶ B(1)), use Defendant’s email system (id. at 19 ¶ B(2)), transact
SCEA business on school property (id. at 19 ¶ C), use leave time for SCEA/TEA functions (id. at
42 ¶ 6; id. at 44 ¶ 7), sit on the “Committee on Education Concerns” (id. at 50 ¶ B), and represent
teachers (id. at 51 ¶ B) among the provisions of the collective bargaining agreement. However,
the Court has been unable to locate any references to SCEA’s right to participate in new teacher
orientation programs or to solicit membership during staff development events. Plaintiffs’
assertion at oral argument that those rights do not, in fact, come from the collective bargaining
agreement appears, therefore, to be correct.
Nevertheless, the Court finds that Plaintiffs are unable to demonstrate a strong likelihood
of success on the merits on their First Amendment claims relating to these restrictions. Put
plainly, the record is not sufficiently developed to determine which party is likely to—or even
22
has the possibility of—success on the merits. For example, there is almost no evidence in the
record regarding SCEA’s past participation in the New Teacher In-Service event. The only
relevant documents that Plaintiffs have submitted are a copy of Dr. Walls’s letter to Dr. Phillips
that formalizes her request to participate in the 2011 event (Doc. No. 7-2) and Mr. Patterson’s
letter urging Dr. Phillips to reconsider his denial of Dr. Walls’s request (Doc. No. 7-3), both of
which refer to the fact that SCEA has participated in the New Teacher In-Service in the past.
The Court otherwise lacks any information as to SCEA’s previous participation in the New
Teacher In-Service, a trend that is at the foundation of Plaintiffs’ argument as to this claim, given
the fact that the participation was not one of SCEA’s now-extinguished contract rights.
Additionally, Defendant has rested much of its arguments on the alleged across-the-board
policy for use of communications systems, but the only written policies that Defendant has
submitted into the record refer—minimally—to employees’ use of bulletin boards and
mailboxes. (Doc. No. 18-1 at 13-14.) Because it appears that this written policy, which is in the
form of an undated4 letter to the School System’s principals (id. at 12), was merely meant to
reflect “some changes [that] [were] being made to how information will be distributed among
[the principals’] employees” (id.), the Court assumes that Defendant refers to other pre-existing
policies that are not in the record. Moreover, there appears to be a factual dispute as to whether
the e-mail from the “Tennessee Religions Freedom Fund,”5 to which Plaintiffs refer in their
argument on this claim, was sanctioned by Defendant.
In light of the dearth of this type of evidence, therefore, the Court is unable to make any
judgments as to Plaintiffs’ arguments about Defendant’s supposed content-based restrictions, or
4
Dr. Michelle Ungurait, a Chief Administrative Officer for Defendant, has testified that Director Phillips prepared
this letter on August 8, 2011, and that the letter was immediately distributed. (Doc. No. 18-1 at 2 ¶ 6.)
5
The email and a flyer attached to the email are included as exhibits to the affidavit of Sharon Walker. (Doc. Nos.
11-1 & 11-2.)
23
Defendant’s arguments as to the reasonableness of the restrictions it has put in place. Such a
lack of clarity in the facts counsels for a finding that Plaintiffs have failed to establish that they
have a strong likelihood of success on the merits of this claim. See Key Safety Sys. v. Invista,
S.A.R.L., L.L.C., No. 08-CV-10558, 2008 U.S. Dist. LEXIS 70117, at *29 (E.D. Mich. Sept. 16,
2008) (finding that the plaintiff had not “demonstrated a strong probability of success on the
merits” in light of the “disputed facts” as to the type of contract that existed between the parties).
c. Defendant’s Requirements for Facility Use
Plaintiffs also argue that Defendant’s requirement that SCEA include professional
development or higher education opportunities as part of its program as a condition of using
school facilities for free violates Plaintiffs’ First and Fourteenth Amendment rights. (Doc. No. 9
at 16.) Plaintiffs assert that Defendant maintains a policy allowing non-profit organizations to
use Defendant’s facilities so long as “proceeds generated are used for approved school, civic,
non-profit or charitable purposes.” (Id.) Plaintiffs argue that Defendant has unlawfully
conditioned the use of school facilities, a recognized governmental benefit, on “foregoing [their]
freedom of speech or accepting government compulsion of speech.” (Id. at 17.) Characterizing
this condition as “equivalent [to] a regulatory fine for the SCEA’s refusal to speak on
[Defendant’s] preferred subject,” Plaintiffs argue that the condition “is a naked interference with
free speech and expressive association.” (Id.) Plaintiffs also contend that this condition violates
their Equal Protection rights because other groups seeking to use facilities at no cost would not
be, pursuant to Defendant’s policy, subject to the same condition on speech. (Id.) Plaintiffs
assert that this difference in treatment would fail the strict scrutiny or compelling interest test.
(Id.) Finally, Plaintiffs argue that Defendant’s conditions on facility use restrict their “expressive
activities,” since they “impair[] SCEA communications not only with new teachers as
24
prospective members but also with existing teachers and existing members.” (Id. at 18.)
Accordingly, Plaintiffs argue that Defendant lacks any legitimate governmental interest in the
restrictions and that Defendant’s sole interests in implementing such conditions are to “muzzle
the SCEA” because it disagrees with SCEA’s message and to retaliate against SCEA for filing a
state lawsuit, a protected activity under the First Amendment’s right to petition. (Id.)
Defendant argues that not allowing SCEA to use its facilities free of charge is not a
content-based restriction, but rather is a result of an application of its reasonable requirement that
organizations seeking to use facilities free of charge qualify as a professional employees’
organization under PECCA. (Doc. No. 18 at 16.) Defendant asserts that the requirement that
any unincorporated association of teachers include educational components in its programming
is viewpoint-neutral and that it “does not seek to dictate the content of meetings held at its
expense, or any percentage of time which must be spent engaging in the qualifying activities of
educational and professional development.” (Id. at 16-17.) Finally, Defendant contends that
granting Plaintiffs an injunction allowing them to use facilities at no cost would require
Defendant “to extend similar privileges to a host of unincorporated associations not otherwise
granted fee-free school facilities usage.” (Id. at 17.)
As with Plaintiffs’ claim related to the alleged prohibition on contact with teachers that
has been imposed on them, the Court finds that Plaintiffs have not established a strong likelihood
of success on the merits with this claim due to the lack of factual certainty in the record. Both
parties have provided a copy of what they allege to be Defendant’s policy on facility use that was
in place at the time that SCEA’s application was rejected. Plaintiffs provide a copy of a policy
that was last revised on November 8, 2010, and which states that “Governmental, civic and
approved non-profit organizations will not be charged [for facility use] as long as any proceeds
25
generated are used for approved school, civic, non-profit or charitable purposes.” (Doc. No. 712 at 3 ¶ F(4).) Defendant provides a different document that Dr. Michelle Ungurait has testified
was the policy in place on September 15, 2011. (Doc. No. 18-1 at 3 ¶ 8.) This document, by
contrast, states that “All organizations (non-profit, or governmental) that are not a part of the
Sumner County School system shall be responsible for ancillary costs incurred by the school
system as a result of this use, e.g. costs for custodial and supervision unless these fees have been
waived by the Director.” (Id. at 15 ¶ 7.) This document, however, is undated and does not
provide any guidelines or indication of when such fees could or would be waived. (See id. at 1516.)
Dr. Ungurait has further testified that SCEA did not comply with Defendant’s alleged
policy, but she nevertheless “authorized” Mr. McClellan to send a letter to SCEA “permitting”
SCEA to use Defendant’s facilities. (Id. at 3 ¶ 9.) This letter, dated September 15, 2011, stated
that Defendant approved SCEA’s application for facility use, and would allow SCEA to use the
facility at no cost “conditioned upon the use including professional development and/or higher
education opportunities for its attendees,” evidence of which had to be submitted in advance of
the meeting. (Id. at 17.6) The letter does not provide any basis for imposing such a requirement;
it does not cite to any board policy, or otherwise provide any explanation for requiring discussion
of “professional development and/or higher educational opportunities for [] attendees” as a part
of the meeting. (See id.) Thus, it is possible that such a requirement was imposed as retaliatory
condition on Plaintiffs’ speech, as Plaintiffs argue, but it is also possible that such a requirement
was reasonably imposed due to additional policy guidelines that are not part of the record and of
which the Court is unaware.
6
This letter is also attached by Plaintiffs as an exhibit to their Amended Complaint. (Doc. No. 7-13.)
26
In light of this factual uncertainty, therefore, the Court finds that Plaintiffs have not
established that they have a strong likelihood of success on the merits on their facility use claim.
See Key Safety Sys., 2008 U.S. Dist. LEXIS 70117, at *29 (finding that the plaintiff had not
“demonstrated a strong probability of success on the merits” in light of the “disputed facts” as to
the type of contract that existed between the parties).
2.
Defendant’s Alleged PECCA Violations
Finally, Plaintiffs argue that they are substantially likely to prevail on their claims under
PECCA. According to Plaintiffs, PECCA makes it unlawful for Defendant or its management to
“interfere with, restrain, or coerce employees” in exercising their rights to self-organization
through SCEA, to join or be assisted by SCEA, and to engage in other concerted activities for
mutual aid and benefit. (Doc. No. 9 at 18.) Plaintiffs argue that PECCA also makes it unlawful
for Defendant or its management to refuse to allow SCEA access to areas where employees work
at reasonable times before or after the school day; to refuse to give SCEA access to bulletin
boards, mailboxes, or other methods of communication; and to refuse to give SCEA access to
facilities as permitted by Defendant’s policy for community use at reasonable times. (Id. at 1819.) Plaintiffs argue that Defendant’s July 26 and September 15, 2011 letters are evidence that
Defendant “has acted in flagrant disregard of these rights.” (Id. at 19.)
Plaintiffs note that Defendant has sought to justify its restrictions on Plaintiffs’ rights
under PECCA by arguing that SCEA is not a local education agency (“LEA”) “with any legal
standing” under PECCA. (Id.) Plaintiffs respond to this justification in two ways. First, they
argue that Defendant has misinterpreted the meaning of an LEA, in that the term is meant to
encompass Defendant as a Board of Education, and not a professional employees’ organization
such as SCEA. (Id.) Moreover, Plaintiffs argue that the requirement that fifteen percent of
27
employees select a given organization under the PECCA is only applicable to “collaborative
conferencing,” a right that is independent of Plaintiffs’ First and Fourteenth Amendment rights
and that is not at issue in this case. (Id. at 18-19.) Thus, Plaintiffs argue that Defendant’s LEA
argument is unavailing.
In its Response, Defendant simply argues that the Court should abstain from deciding
Plaintiffs’ state law claims because no Tennessee court has interpreted PECCA. (Doc. No. 18 at
18.) Defendant also denies violating PECCA. (Id.) At the hearing, Defendant asserted that
several lawsuits based on PECCA are pending in state courts, but decisions have yet to be issued
in those cases. Plaintiffs have not disputed that assertion, and the Court has been unable to
locate any cases decided under PECCA.
“Abstention is a judicially created doctrine that” first emerged in Railroad Commission
of Texas v. Pullman Co., 312 U.S. 496 (1940), and was subsequently expanded in Harrison v.
N.A.A.C.P., 360 U.S. 167 (1962). Gay v. Bd. of Registration Comm’rs, 466 F.2d 879, 883 (6th
Cir. 1972). The Sixth Circuit has articulated “several policy considerations” at the foundation of
the abstention doctrine. Id. First, courts should seek to avoid “a premature constitutional
decision by a possible narrowing construction of the state law by a state court.” Id. (citing Lake
Carriers’ Ass’n v. MacMullan, 406 U.S. 498 (1972); Harman v. Forssenius, 380 U.S. 528
(1965); Zwickler v. Koota, 389 U.S. 241, 255 (1967) (Harlan, J., concurring)). Second, courts
should avoid “needless conflict in the federal-state relationship.” Id. (citing Younger v. Harris,
401 U.S. 37 (1971); Burford v. Sun Oil Co., 319 U.S. 315 (1943)). Third is “the desirability of
avoiding the necessity of a federal court making tentative decisions on issues of state law.” Id.
(citing Reetz v. Bozanich, 397 U.S 82 (1970); Meredith v. Winter Haven, 320 U.S. 228 (1943)).
28
Finally, courts should avoid “unnecessary interference with state functions or regulatory
schemes.” Id. (citing Lake Carriers’ Ass’n, 406 U.S. 498; Younger, 401 U.S. 37).
Abstention is improper in certain circumstances, however. For example, “abstention is
improper if the underlying issue of state law is not controlling in the present litigation, or if the
federal right is not ‘entangled in a skein’ of state regulation.” Id. at 883-84 (quoting McNeese v.
Bd. of Educ., 373 U.S. 668 (1962)). Furthermore, the Supreme Court held “abstention improper
because a single state litigation could not cure the constitutional infirmities of a state loyalty oath
challenged on the grounds of vagueness” in Baggett v. Bullitt, 377 U.S. 360 (1963). Gay, 466 at
884. Abstention would also be “improper if its application would require piecemeal
adjudication, causing unnecessary delay in the resolution of constitutional questions.” Id. (citing
England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411 (1963)). Additionally, “abstention
applies only where the issue of state law is uncertain and relates to questions which only a state
court could authoritatively construe.” Id. (citing Wisconsin v. Constantineau, 400 U.S. 433
(1970); Lake Carriers’ Ass’n, 406 U.S. 498). Finally, a court should not abstain “merely to
await an attempt to vindicate the claim of the appellant in state court,” id. (citing Zwickler, 389
U.S. 241), and “[t]he availability of declaratory relief in state courts is wholly irrelevant,” id.
(citing Lake Carriers’ Ass’n, 406 U.S. 498).
In its Response, Defendant has not provided any legal analysis in its argument as to
abstention, though it does state that it “renews its request to this court that it exercise its power of
abstention over the state law claims.” (Doc. No. 18 at 18.) The Court assumes that Defendant
refers to an affirmative defense Defendant provided in its Answer wherein Defendant states that
“this is an appropriate case for the application of” the abstention doctrine, and cites to Lake
Carriers’ Association v. MacMullan. (Doc. No. 14 at 7.)
29
In Lake Carriers’ Association v. MacMullan, the Supreme Court explained when a
federal court confronted with a state law issue should abstain from deciding the issue in the
following manner:
“Where resolution of the federal constitutional question is
dependent upon, or may be materially altered by, the determination
of an uncertain issue of state law, abstention may be proper in
order to avoid unnecessary friction in federal-state relations,
interference with important state functions, tentative decisions on
questions of state law, and premature constitutional adjudication. .
. . The doctrine . . . contemplates that deference to state court
adjudication only be made where the issue of state law is
uncertain.”
406 U.S. at 511 (quoting Harman, 380 U.S. at 534). The Supreme Court affirmed a three-judge
district court decision to abstain from deciding a complaint filed pursuant to the Michigan
Watercraft Pollution Control Act of 1970, id. at 500, but did so for different reasons than those
given by the lower court, id. at 509. The Supreme Court noted that the statute had “not been
construed in any Michigan court, and . . . its terms are far from clear in particulars that go to the
foundation of [appellants’] grievance.” Id. at 511. The Supreme Court went on to state that it
did “not know, of course, how far Michigan courts [would] go in interpreting the requirements of
the state Watercraft Pollution Control Act in light of the federal Water Quality Improvement Act
and the constraints of the United States Constitution.” Id. at 512.
Given that the interpretation of PECCA is “‘an uncertain issue of state law,’” Lake
Carriers’ Ass’n, 406 U.S. at 511 (quoting Harman, 380 U.S. at 534), and that litigation related to
the new statutory scheme is apparently ongoing in state courts, the Court believes that the most
prudent course of action would be to abstain from deciding Plaintiffs’ state law PECCA claims at
this time. Accordingly, Plaintiffs cannot establish that they have a strong likelihood of success
on the merits on these claims.
30
B. Equitable Factors
Beyond the likelihood of success on the merits, there are “three other factors [that]
influence the propriety of a preliminary injunction: ‘whether the movant would suffer irreparable
injury without the injunction’; ‘whether issuance of the injunction would cause substantial harm
to others’; and ‘whether the public interest would be served by the issuance of the injunction.’”
Hunter, 635 F.3d at 244 (quoting Certified Restoration Dry Cleaning Network, 511 F.3d at 542).
“Notwithstanding this balancing approach, ‘[w]hen a party seeks a preliminary injunction
on the basis of a potential violation of the First Amendment, the likelihood of success on the
merits often will be the determinative factor.’” Jones v. Caruso, 569 F.3d at 265 (alteration in
original) (quoting Connection Distrib. Co., 154 F.3d at 288). For example, the Sixth Circuit has
stated that “‘[t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.’” Id. at 277 (quoting Elrod v. Burns, 427 U.S. 347,
373 (1976)). In addition, “[w]hen a constitutional violation is likely . . . the public interest
militates in favor of injunctive relief because ‘it is always in the public interest to prevent the
violation of party’s constitutional rights.’” Miller, 622 F.3d at 540 (quoting Connection Distrib.
Co., 154 F.3d at 288).
Because the Court has found that Plaintiffs are likely to succeed on their First
Amendment claim regarding Defendant’s ban on communications, all three equitable factors
favor Plaintiffs as to that claim. As the Sixth Circuit stated in Jones v. Caruso and Miller, a
finding of a likelihood of success on the merits virtually guarantees a favorable finding with
respect to the irreparable injury and public interest factors. The Court also finds that the factor
examining the substantial harm to others favors Plaintiffs on the same claim. More specifically,
as the Court noted above, see supra Section III(A)(1)(a), the Court finds merit in Plaintiffs’
31
argument that Defendant will not be harmed by an injunction barring Defendant from imposing a
flat ban on communications, and instead holding them to a ban on communications regarding the
ongoing state court litigation. With an injunction that would limit Defendant to such a narrower
ban—an effect that Defendant claims it intended in and that has been realized as a result of its
August 5, 2011 letter to Plaintiffs’ counsel—Defendant cannot otherwise claim that it will suffer
substantial harm due to the issuance of an injunction.
On the other hand, the equitable factors do not favor Plaintiffs as to their other claims.
While the Court reserves its judgment as to the likelihood of success on those claims, and further
abstains from Plaintiffs’ state law claims, the Court cannot say that the record, as currently
developed, indicates that Plaintiffs will suffer an irreparable injury with respect to those claims.
Furthermore, as denying Plaintiffs injunctive relief as to their other claims should have a
negligible effect on others, at best, the Court finds that the factor focusing on harm to others
favors Defendant on these other claims. Lastly, the public interest similarly favors a denial of
injunctive relief as to those claims. There are simply too many factual uncertainties at this time
with respect to Plaintiffs’ other First Amendment claims to find in favor of Plaintiffs on this
factor. Moreover, as to Plaintiffs’ PECCA claims, the Court concludes that the public interest
favors abstaining on such claims in order to allow Tennessee courts, which are certainly more
well-versed in state law than this Court, to provide guidance as to how such a new statutory
scheme should be interpreted.
IV. CONCLUSION
For the abovementioned reasons, Plaintiffs’ Motion is GRANTED in part and DENIED
in part. It is ORDERED that Defendant shall refrain from carrying out a flat ban on
32
communications between Plaintiffs and Defendant, mandating that all communications be made
between counsel for the two parties; Defendant may only require communications to be made
between counsel when the subjects of such communications relate to ongoing litigation between
SCEA and Defendant in state court.
It is so ORDERED.
Entered this ____29th________ day of December, 2011.
________________________________
JOHN T. NIXON, SENIOR JUDGE
UNITED STATES DISTRICT COURT
33
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