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Dermer v. Miami-Dade County

Court: Court of Appeals for the Eleventh Circuit
Date filed: 2010-03-15
Citations: 599 F.3d 1217
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                                                              [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT                 FILED
                                                  U.S. COURT OF APPEALS
                                                    ELEVENTH CIRCUIT
                                                       MARCH 15, 2010
                           No. 08-15061
                                                         JOHN LEY
                                                          CLERK

                 D.C. Docket No. 07-21308-CV-ASG

DAVID DERMER,

                                                       Plaintiff–Appellee,

                              versus

MIAMI-DADE COUNTY,
a political Subdivision
of the State of Florida,
MIAMI-DADE COUNTY BOARD OF COMMISSIONERS,

                                                   Defendants–Appellants,

BILL MCCOLLUM,

                                                               Defendant.


            Appeal from the United States District Court
                for the Southern District of Florida


                         (March 15, 2010)
Before WILSON and ANDERSON, Circuit Judges, and RESTANI,* Judge.

RESTANI, Judge:

       In May 2007, Plaintiff-Appellee David Dermer sued Defendant-Appellant

Miami-Dade County, inter alia, for declaratory and injunctive relief against

Ordinance 06-167 (“the Ordinance”) on the ground that it violated his right to free

speech under the First Amendment. Miami-Dade now appeals from an order of

the United States District Court for the Southern District of Florida that partially

granted Dermer’s cross-motion for summary judgment and permanently enjoined

enforcement of the Ordinance on the ground that it is unconstitutional.1 We

reverse and hold that the first and second causes of action of Dermer’s complaint,

to the extent they pertain to the Ordinance, are not justiciable because Dermer

lacks standing, and his claims are not ripe.

                                     BACKGROUND

       In November 2006, the Miami-Dade County Board of County

Commissioners enacted the Ordinance, which amended section 12-23 of the Code

       *
         Honorable Jane A. Restani, Chief Judge of the United States Court of International
Trade, sitting by designation.
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          Dermer also challenges the constitutionality of Ordinance 06-168. Although Dermer’s
cross-motion sought summary judgment on both Ordinance 06-167 and Ordinance 06-168, the
district court reserved ruling on Ordinance 06-168 pending the Florida Supreme Court’s decision
in another case. Dermer v. Miami-Dade County, *43 (No. 07-21308, Aug. 1, 2008) (unpublished
opinion).

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of Miami-Dade County. See Miami-Dade County, Fl., Ordinance 06-167 (Nov.

28, 2006) (“Ordinance 06-167”). The Ordinance provides:

      It shall be unlawful for any person, entity, or elector intentionally to
      make or cause to be made any false statement concerning the contents
      or effect of any petition for initiative, referendum, or recall submitted
      pursuant to Article 7 of the Miami-Dade County Home Rule Charter
      to any person who is requested to sign any such petition or who
      makes an inquiry with reference to any such petition and who relies
      on such statement.

Ordinance 06-167. The Ordinance also provides that “[a]ny person, entity, or

elector convicted of a violation of . . . this Code shall be punished by a fine not to

exceed five hundred dollars ($500.00) or by imprisonment . . . [of] not more than

sixty (60) days, or by both such fine and imprisonment.” Ordinance 06-167.

      Dermer, a former mayor of Miami Beach, is a resident and registered voter

of Miami-Dade County. Dermer claims that he was actively engaged in local

politics, specifically past referendums and initiatives, but is now fearful to

participate because of the Ordinance. Dermer sued Miami-Dade County seeking

declaratory and injunctive relief on the ground that the Ordinance violates his

rights under the First Amendment.

      In Dermer v. Miami-Dade County (No. 07-21308, Aug. 1, 2008)

(unpublished opinion), the district court denied Miami-Dade’s motion for

summary judgment and granted Dermer’s cross-motion for summary judgment,

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finding that Dermer had standing because he “read [the Ordinance] and believes

that it has a chilling effect on his willingness to participate in any current

referendums or to become involved in any initiating of a referendum on any of the

important matters of public interest about which he cares deeply.” Id. at *5. The

district court held that the Ordinance was unconstitutional because it was

overbroad on its face, vague, and failed a strict scrutiny analysis. Id. at *29, *33,

*36. The court then struck down the Ordinance in its entirety because the court

concluded that it could not sever “the unconstitutional provisions and leave in

place an ordinance that is complete.” Id. at *38.

              JURISDICTION AND STANDARD OF REVIEW

      “This Court has jurisdiction to entertain appeals of [i]nterlocutory orders of

the district courts . . . granting, continuing, modifying, refusing, or dissolving

injunctions” under 28 U.S.C. § 1292(a)(1). United States v. Kaley, 579 F.3d 1246,

1252 (11th Cir. 2009) (internal quotation marks and citation omitted). A court,

however, lacks subject matter jurisdiction to hear a case if the requirements of

Article III of the Constitution are not satisfied. Bochese v. Town of Ponce Inlet,

405 F.3d 964, 974 (11th Cir. 2005). Thus, a court must first address “the threshold

question whether appellees have alleged a case or controversy within the meaning

of Art. III of the Constitution or only abstract questions not currently justiciable by

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a federal court.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297

(1979); see Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1339–40 (11th

Cir. 2000). To allege a justiciable cause of action, a plaintiff must plead facts that

are sufficient to confer standing and demonstrate that the claim is ripe for

determination. See Ass’n for Children for Enforcement of Support, Inc. v.

Conger, 899 F.2d 1164, 1165 (11th Cir. 1990). We review “questions concerning

our subject matter jurisdiction, including standing and ripeness” de novo. Elend v.

Basham, 471 F.3d 1199, 1204 (11th Cir. 2006).

                                   DISCUSSION

       In a case involving pre-enforcement review, there is often “doctrinal

overlap between standing and ripeness analysis” because these claims “involve the

possibility of wholly prospective future injury.” Elend, 471 F.3d at 1205. We

will, however, to the extent possible address these issues separately.

I.    Standing

      Standing for Article III purposes requires a plaintiff to provide evidence of

an injury in fact, causation and redressibility. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61 (1992). Although the “injury requirement is most loosely

applied” when an ordinance is challenged as unconstitutional on its face under the

First Amendment, we have repeatedly stressed that when seeking prospective

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relief, an injury must be imminent. Hallandale Prof’l Fire Fighters Local 2238 v.

City of Hallandale, 922 F.2d 756, 760 (11th Cir. 1991); Elend, 471 F.3d at 1210;

31 Foster Children v. Bush, 329 F.3d 1255, 1266–67(11th Cir. 2003).

      The sole injury that Dermer alleges is “a chilling effect on [his] willingness

to participate in any current referendum or to become involved in any initiating of

a referendum on any of the important matters of public interest about which [he]

care[s] deeply.” (R.E. Tab 50-2 at 2.) While true that “it is not necessary that [a

plaintiff] first expose himself to actual arrest or prosecution to be entitled to

challenge a statute that he claims deters the exercise of his constitutional rights,”

Steffel v. Thompson, 415 U.S. 452, 459 (1974), a plaintiff still must demonstrate

“an actual and well-founded fear that the law will be enforced against [him],”

Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). Dermer,

however, failed to provide the court with anything more than generalizations. He

refrained from submitting any detail, such as when, where, or how he intends to

exercise his right to free speech in the future, that illuminates the specifics of his

claimed injury. Without such elaboration, his mere assertion of a chill is

insufficient to demonstrate an injury in fact. See Laird v. Tatum, 408 U.S. 1,

13–14 (1972) (holding that “[a]llegations of a subjective ‘chill’ are not an

adequate substitute for a claim of specific present objective harm or a threat of

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specific future harm” (emphasis added)); Elend, 471 F.3d at 1209 (holding that

even when core political speech is implicated, a plaintiff must provide some

“limitation on the universe of possibilities of when or where or how such a [future

injury] might occur”). Accordingly, Dermer lacks standing to bring forth this

action.

II.   Ripeness

      A “[r]ipeness analysis involves the evaluation of two factors: the hardship

that a plaintiff might suffer without court redress and the fitness of the case for

judicial decision.” Elend, 471 F.3d at 1211. While “[h]ardship can sometimes be

established if a plaintiff demonstrates that he would have to choose between

violating an allegedly unconstitutional statute or regulation and risking criminal or

severe civil sanctions . . . plaintiffs must still demonstrate a credible threat of

prosecution.” Id. (internal quotation marks and citations omitted). This

requirement is not satisfied if “it would strain credulity to say that there is a

credible threat that [a plaintiff’s] First Amendment rights will be violated in the

future.” Id.

      For the reasons discussed in the previous section, Dermer’s allegations

contain no factual specificity and, therefore, do not demonstrate a credible threat



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of prosecution. Id.; see Hallandale, 922 F.2d at 761, 764 (holding that a bald

assertion of a chilling effect is not enough to render a case ripe). When a plaintiff

lacks standing for prospective relief because the injury in fact requirement is not

satisfied, the claim is usually “not ripe because the factual predicate for the injury

has not fully materialized.” Elend, 471 F.3d at 1205. Accordingly, Dermer’s cause

of action is not ripe for adjudication.

                               CONCLUSION

      For the foregoing reasons, we REVERSE and VACATE the judgment of the

district court and REMAND this case with instructions to DISMISS Dermer’s

complaint as to the Ordinance under Federal Rule of Civil Procedure 12(b)(1) for

lack of subject matter jurisdiction.




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