Athiests Court Order
Athiests Court Order
Athiests Court Order
Plaintiffs,
Defendants.
Thiscause is before the Court on Defendants'. City of Lakeland and Mayor Gow Fields,
Motion lo Dismiss (Doc. 15) and Plaintiffs', Atheists of Florida, Inc. and Ellenbeth Wachs,
response thereto (Doc. 21). For the reasons set forth below, Defendants' Motion to Dismiss is
DENIED IN PART, as to Counts I and II, and GRANTED IN PART, as to Counts III and IV.
The following facts, gleaned from Plaintiffs' First Amended Complaint (Doc. 10) and the
exhibits appended thereto, are taken as true for purposes of this motion.
Plaintiffs. Atheists of Florida. Inc. and Ellenbeth Wachs (hereinafter "Plaintiffs"), filed
this action on July 12, 2010. to challenge Defendants', City of Lakeland and Mayor Gow Fields
1
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 2 of 23 PageID 220
allowing religious ministers to perform prayer rituals, or invocations, before each meeting of the
Lakeland City Commission. Plaintiff Atheists of Florida is a nonprofit corporation that "seeks
freedom of and from religion [and] equal treatment under the law . ..." (Doc. 10, *!15).
Plaintiff Ellenbeth Wachs is the Director of the Lakeland Chapter of Atheists of Florida.
Plaintiffs' four-count complaint (Doc. 10) alleges violations of 42 U.S.C. § 1983 with regard to
the Establishment Clause (Count I), the Equal Protection Clause (Count III), and the Freedom of
Speech Clause (Count IV) of the United States Constitution, and also sets out a claim under the
Establishment Clause of the Florida Constitution (Count II). Plaintiffs seek declaratory relief
pronouncing the Lakeland City Commission's prayer policy illegal, injunctive reliefpreventing
Defendants from continuing the practice, nominal money damages, and attorney's fees pursuant
to 42 U.S.C. § 1988.
This case stems from the Lakeland City Commission's practice of beginning each of its
bi-monthly meetings with a prayer invocation. Plaintiffs have attended these meetings in the
past, viewed them over the Internet, and plan to attend them in the future; they thus claim to have
been subjected to unwelcome endorsement of religion '"with government imprimatur." (Doc. 10,
1121).
The City maintains a list of religious representatives from which it chooses various clergy
lo deliver prayers at the beginning of each City Commission meeting. Plaintiffs assert that the
City expends considerable financial and administrative resources compiling the list and in
mailing invitations to the religious representatives requesting that they present prayers. Prior to
August 2. 2010. the City compiled the list of potential prayer-givers by referencing the "Yellow
Pages." Plaintiffs contend that the City's selection process evidences a custom and practice of
categorically excluding non-Christian religious groups and the non-religious. They note that the
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 3 of 23 PageID 221
City's 2010 Invocation Schedule originally included only Protestant Christian figures, with the
Beginning in March 2010. Plaintiffs began lo complain to the City about the prayers at its
City Commission meetings. On March 15. 2010, Plaintiffs delivered a letter to Defendant Fields,
Mayor of Lakeland, asking that the City dispense with its religious prayer practice and instead
offer a "silent moment of reflection" to solemnize the Commission meetings. (Doc. 10. Ex. 2).
While Defendant Fields responded in a March 18 letter that "[t]he practice of opening Lakeland
City Commission meetings with an invocation has a long history and will continue unless the
City Commission decides it should be changed." he also defended the practice, explaining that
"|e|very effort is made to ensure that those offering an inspirational message [are] representative
Following Plaintiffs' initial letter of complaint, the City continued its practice of inviting
Chrislian invocation speakers to offer prayers at the start of City Commission meetings. On May
3. 2010. however, the City invited a Jewish Cantor lo give the prayer. According to Plaintiffs,
that was the only instance of a non-Christian prayer during the time periods relevant lo this suit.
In the months to follow. Plaintiffs continued to agitate against the prayer policy and. unsatisfied
by the City's response, initiated the instant action on July 12, 2010.
Just a few weeks after the filing oflhe initial Complaint, on August 2. 2010, the Lakeland
City Commission proposed Resolution No. 10-041 (the "Resolution") for the purpose of
"codifying its policy regarding invocations before meetings of the Lakeland City Commission."
(Doc. 10. Ex. 4). The Lakeland City Attorney explained on August 2ntl that the Resolution was
part of the city's '"litigation strategy." (Doc. 10). The Resolution, which passed by a vote of 6-0
that very same day, begins by explaining that the Commission "wishes to maintain a tradition of
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 4 of 23 PageID 222
solemnizing its proceedings by allowing for an opening invocation before each meeting, for the
benefit and blessing of the Commission." (Doc. 10, Ex. 4). The Resolution then sets forth the
relevant Supreme Court and Eleventh Circuit legal precedent regarding legislative prayer and
declares that "the Commission intends, and has intended in past practice, to adopt a policy that
does not proselytize or advance any faith, or show any purposeful preference of one religious
Finally, Resolution 10-041 provides that an invitation to deliver the invocation at a City
Commission meeting must be mailed to each entry on the City's official "Congregations List."
The Congregations List is to "be compiled by referencing the listing for 'churches,'
published for the [sic] Lakeland and Polk County[,J researched from the Internet, and
consultation with local chambers of commerce." Further. "[a]ll religious congregations with an
established presence in the local community . . . shall be[] included in the Congregations List.
Any such congregation not otherwise identified for participation may request ils inclusion by
specific written communication lo the Secretary." The Resolution also removes the invocation
from the official meeting agenda and provides for a disclaimer to be placed on the meeting
agenda clarifying that "the Commission is not allowed by law lo endorse the religious beliefs or
include contentions that the Resolution itself codifies an unconstitutional practice and that, in the
alternative, the City has failed to follow the Resolution's enumerated policy for selecting prayer-
givers and for ensuring that the invocation is given before the start of the Commission meeting's
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 5 of 23 PageID 223
official business. Approximately one month after passing the Resolution, on September 8. 2010,
STANDARD OF REVIEW
Federal Rule of Civil Procedure Rule 8(a)(2) requires that a plaintiffs complaint lay out
"a short and plain statement of the claim showing that the pleader is entitled to relief in order to
"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."
Conley v. Gibson, 355 U.S. 41. 47 (1957). That said. "[w]hile a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to
provide the grounds of his entitlement to reliefrequires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do." Bell All. Corp. v.
Twombly, 550 U.S 544, 555 (2007) (internal quotation marks and citation omitted).
Therefore, "to survive a motion to dismiss, a complaint must now contain sufficient
factual matter, accepted as true, to "slate a claim lo reliefthat is plausible on its face."',4/7?.
Denial Ass'n v. Cigna Corp., 605 F.3d 1283. 1289 (1 llh Cir. 2010) (quoting Twombly, 550 U.S.
at 570). In consideringa motion to dismiss, courts must follow a simple, two-pronged approach:
""1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where
there are well-pleaded factual allegations, 'assume their veracity and then determine whether
they plausibly give rise to an entitlement lo relief"" Id. at 1290 (quoting Ashcrofl v. IqhaL 129 S.
Ct. 1937. 1950 (2009)). In sum, the "pleading standard Rule 8 announces does not require
"detailed factual allegations,' but demands more than an unadorned, the defcndant-unlawfully-
harmed-me accusation." h/bal. 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555).
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 6 of 23 PageID 224
DISCUSSION
At the threshold, and before considering the merits of the City's substantive attacks under
Rule 12(b)(6), the Court must consider Defendants' contention that the passage of Resolution 10-
041 renders this cause moot. North Carolina v. Rice, 404 U.S. 244, 245-246 (1971) (explaining
that mootness is a threshold question); see Sheely v. MRI Radiology Network, P.A., 505 F.3d
1173. 1182 (11th Cir. 2007) (noting thai a dismissal on moolness grounds is procedurally a
dismissal for lack of subject matterjurisdiction under Federal Rule of Civil Procedure 12(b)(1)).
Only il'Plaintiffs' claim survives the mootness challenge will this Court continue on to determine
if the allegations as set forth in the complaint "plausibly give rise to an entitlement to relief."
A. Mootness
Article III. Section 2 of the United States Constitution extends federal jurisdiction only to
live "cases" and ""controversies." Troiano v. Supervisor of Elections in Palm Beach Cnly.. 382
F.3d 1276. 1281 (11th Cir. 2004). "Put another way, 'a case is moot when it no longer presents a
live controversy with respect lo which the court can give meaningful relief" Al Najjar v.
Ashcrofi. 273 F.3d 1330. 1336 (11th Cir. 2001) (quoting Via. Ass'n Rehab. Facilities, Inc. v. F/a.
Dep'l Health ct- Rehab. Servs., 225 F.3d 1208, 1216-1217 (1 lib Cir. 2000)). Deciding a moot
issue is the equivalent of issuing an advisory opinion and. therefore, is not within the jurisdiction
of Article III courts. Friends ofthe Everglades v. S. Fla. Water Mgmt. Disi., 570 F.3d 1210,
1216 (11 th Cir. 2009) ("To decide questions that do not matter to the disposition of a case is to
separate Lady Justice's scales from her sword. That we will not do." (citation omitted)). Thus,
the court is required to dismiss a moot action for want of jurisdiction. Seay Outdoor Adver., Inc.
6
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 7 of 23 PageID 225
v. City ofMary Esther, 397 F.3d 943. 946 (11 th Cir. 2005); see Nat7 Adver. Co. v. City ofMiami
{Nal 7 Adver. I). 402 F.3d 1329. 1332(1 lth Cir. 2005) (per curiam).
"When a subsequent law brings the controversy to an end. 'the case becomes moot and
should be treated accordingly."" Coal, for (he Abolition ofMarijuana Prohibition v. Cityof
Atlanta, 219 F.3d 1301. 1310 (1 lth Cir. 2000) (quoting Church ofScientology Flag Serv. Org.,
Inc. v. Cily ofClearwater. Ill l'.2d 598. 605 (1 lth Cir. 1985)). Indeed, "[constitutional
challenges lo statutes are routinely found moot when a statute is amended or repealed." Seay,
397 F.3d at 947: see Coral Springs Sireel Sys., Inc. v. Cily ofSunrise, 371 F.3d 1320. 1328 (1 lth
Cir. 2004) (explaining thai a change in the law or a change in circumstances will often moot a
controversy). Nonetheless, "il is well settled that "a defendant's voluntary cessation of a
challenged practice does not deprive a federal court of its power to determine the legality of the
practice.'" Friends ofthe Earth, Inc. v. Laidlaw Envll. Services (TOC), Inc., 528 U.S. 167. 189
(2000) (quoting City ofMesquile v. Aladdin \s Castle, 455 U.S. 283, 289 (1982)). The repeal or
replacement of a challenged law will moot a case only: (a) '"if subsequent events ma[k|e it
absolutely clear that the allegedly wrongful behavior could not reasonably be expected to
recur.'" Coral Springs. 371 F.3d al 1328 (quoting Sec[v ofLabor v. Burger King Corp., 995 F.2d
681. 684 (11 th Cir. 1992)); and (b) "where 'a superseding statute satisfies all the principles
sought in an attack on the prior statute." Nalurist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520
(1 lth Cir. 1992) (emphasis in original) (quoting Johnson v. Stale. 586 F.2d 387. 288 (5th Cir.
1978)).
As to the reasonable expectation that the wrongful behavior will recur, after a change in
likelihood" that the challenged practice or statute will be reinstated. Nal 'I Adver. I, 402 F.3d at
7
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 8 of 23 PageID 226
1334: Coral Springs. 371 F.3d at 1329. What is more, "'when the defendant is not a private
citizen but a government actor, there is a rebuttable presumption that the objectionable behavior
will not recur." Troiano, 382 F.3d at 1283 (emphasis in original); see Coral Springs, 371 F.3d at
1328-1329 (noting that "•governmental entities and officials have been given considerably more
leeway than private parties in the presumption that they are unlikely to resume illegal
activities"). However, in assessing the likelihood that a government actor will reinstate a
challenged practice, the timing of thechange in the law can be essential to addressing the
government's "sincerity." and thus the chances that the change in the law ismerely a litigation
lactic designed to remove the court's jurisdiction. Coral Springs, 371 F.3d at 1331; see Nat 7
Adver. I. 402 F.3d at 1333 ("[Voluntary cessation of offensive conduct will only moot litigation
if it is clear that the defendant has not changed course simply to deprive the court of
jurisdiction."); US. v, W. T Grant Co., 345 U.S. 629. 638 (1953) ("It is the duty of the courts to
beware of efforts to defeat injunctive reliefby protestations of repentance and reform, especially
when abandonment seems timed to anticipate suit. . . ."): see also Harrell v. Flu. Bar. 608 F.3d
1241. 1266 (11 th Cir. 2010) (noting that "the timing and content" of a decision to voluntarily
cease challenged behavior arc ""critical"* lo determining whether there is any reasonable
expectation of recurrence, and explaining that when cessation occurs "late in the game" the court
will be "more skeptical" in its assessment of mootness); Burger King, 955 F.2d at 684 (finding
case not moot where cessation came "on the eve of trial"); Nat 7 Adver. Co. v. City ofFort
Lauderdale. 934 F.2d 283. 286 (1 lth Cir. 1991) (finding case not moot where cessation came six
weeks after filing of suit and City filed motion lo dismiss the very next day); Jager v. Douglas
Cnly Sch. Dist. 862 F.2d 824, 833-834 (1 lth Cir. 1989) (finding case not moot where cessation
came "[ujnderthe imminent threat of the [plaintiffs'] lawsuit"). Nonetheless, the "City's
8
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 9 of 23 PageID 227
purpose in amending the statute is not the central focus of our inquiry nor is it dispositive.'" Nat 7
Adver. 1,402 F.3d at 1134. Rather, the "most significant]]" determining factor is ""whether the
court is sufficiently convinced that the repealed law will not be brought back.'" Id. (quoting
In addition lo the likelihood that the challenged policy will be reinstated, the enactment
of a superseding law will not render a case moot "when [the previous policy] is replaced by
another constitutionally suspect law." Seay. 397 F.3d at 947. In other words, a "'superseding
statute or regulation moots a case only to the extent that it removes challenged features of the
prior law. To the extent that those features remain in place, and changes in the law have not so
fundamentally altered the statutory framework as to render the original controversy a mere
abstraction, the case is not moot.'" Coal, for the Abolition of Marijuana Prohibilion, 219 F.3d at
Applying the principles laid out above to the case at bar, it is important to first note that
this is not a case of a challenged statute or ordinance that is later repealed or superseded, as was
the case in almost every authority on point. Rather, here the City previously had no law at all,
but adhered to an unwritten policy or practice of inviting different religious figures to deliver the
invocation at City Commission meetings. When Plaintiffs began agitating against that unwritten
policy, the City issued Resolution 10-041 (an entirely new law) codifying its previously
If this were a case of the simple replacement of a challenged law with a new, superseding
law. this Court would simply assess the constitutionality of the new law, evaluate whether the
challenged behavior is likely lo recur and, assuming the City slaked both conditions, declare the
case moot. See Seay, 397 F.3d at 947. Therefore, assuming that the same legal paradigm for
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 10 of 23 PageID 228
repealed or superseded statutes applies here, and assumingarguendo that the City's written
policy. Resolution 10-041, is constitutional, its enactment would possibly render this action
moot. The City did pass Resolution 10-041 three weeks after Plaintiffs filed suit in this case, a
factor thai weighs against mootness: however, that fact is not dispositive. Nat 'I Adver. I. 402
1.3d at 1134. Moreover, Plaintiffs contend that the Lakeland City Attorney admitted thai the
passage of Resolution 10-041 was part of the City's "litigation strategy" (Doc. 10,1100), a fact
that tends to show that the City "changed course simply to deprive the court of jurisdiction" and
thus augurs against a finding of mootness.1 Nat'I Adver. I, 402 F.3d at 1333. On the other hand,
because government aclors enjoy "a rebuttable presumption that the objectionable behavior will
not recur." Troiano. 382 F.3d al 1283. Plaintiffs would bear the heavy "burden of presenting
affirmative evidence" that the City might reenact the challenged practice. Nat i Adver. I, 402
There is more afoot here, however. Plaintiffs do not merely argue that Resolution 10-041
itselfcodifies an unconstitutional practice; instead. Plaintiffs also argue that the City's "actual
policy, practice, or custom" is different from that codified in Resolution 10-041. (Doc. 10, ^|91).
In any 42 U.S.C. § 1983 action, a municipal entity is liable either if its official policy is
constitutionally repugnant or if "the repeated acts of the final policymakerof the entity"
demonstrate "an unofficial custom or practice" that is unconstitutional. Greek v. Clayton Cnty.,
335 F.3d 1326. 1329-1330 (11th Cir. 2003). While liability cannot be based upon an isolated
incident. McDowell v. Brown. 392 F.3d 1289. 1290 (1 lth Cir. 2004). and the policy or custom
1li is also important to note that in Pe/pbrcy v. Cobb County, (heseminal case concerning legislative prayer in this
jurisdiction, the Cobb County Commission and the Cobb County Planning Commission discontinued the challenged
policies long before the case made its way before the Eleventh CircuitCourt of Appeals. 547 F.3d 1263, 1268 (1 lth
Cir. 2008). Nonetheless, and despite the fact that •"the question of mootness is jurisdictional in nature [and] may be
raised by the court sua sponte, regardless of whether the district court considered it or if the parties briefed the
issue," Nat'I Adver. I. 402 I-'.3d at 1332. the Eleventh Circuit evaluated the substantive merits of the case. Pelphrey,
547 F.3dat 1281.
10
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 11 of 23 PageID 229
must be the moving force of the constitutional violation. Greek, 335 F.3d at 1330; see Gold v.
Cily ofMiami, 151 F.3d 1346. 1350 (1 lth Cir. 1998). the fact remains that a "practice, although
not authorized by written law or express municipal policy," can form the basis for § 1983
Ultimately, because Plaintiffs contend not only that the City's official policy is
unconstitutional, bul also that the City is not actually following that policy, il can hardly be said
that the enactment of Resolution 10-041 in this case is sufficient "to render the original
controversy a mere abstraction." Coal, for the Abolition ofMarijuana Prohibilion, 219 F.3d at
1310 (quoting Fillyaw, 958 F.2cl at 1520). Here, the Lakeland City Commission and Defendant
Fields, as Mayor of the City, are undoubtedly the final policymakers for the City of Lakeland.
Lakeland City Charter. § 8; Fla. Const, art. VIII. § 2. Given the charitable standard of review
applied to factual allegations at this stage of the proceedings, Defendants' mootness challenge
must accordingly fail. See Rive/l v. Priv. Health Care Sys., Inc., 520 F.3d 1308. 1309 (1 lth Cir.
2008) (explaining that, for purposes of a motion to dismiss, the"allegations in the complaint are
taken as true and conslrued in the light most favorable to the plaintiffs") (quoting Hqffman-Pugh
That is not to say. of course, that the Plaintiffs will be able to amass sufficient evidence
See ( elotex C'orp. v. C'aireii. All U.S. 311, 324 (1986) (providing that the nonmoving party must
""designate specific facts showing that there is a genuine issue for trial" to defeat summary
judgment). Problems of proof abound in cases such as these. Those problems, however, are best
left for another day. At this early juncture, it is enough to say that Plaintiffs have presented a
11
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 12 of 23 PageID 230
"live case or controversy" for resolution to this Court, and, therefore, the case is not moot.
CAMP Leg. Def Fund. Inc. v. Cily ofAtlanta. 451 F.3d 1257. 1277 (1 lth Cir. 2006).
B. Substantive Claims
Having dispensed with Defendants' justiciability challenge, the Court now turns to
Defendants' Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be
granted. Because Defendants move to dismiss all counts (Counts I-IV) of Plaintiffs' complaint,
The gravamen of Plaintiffs' complaint alleges that Defendants' prayer policyviolates the
Establishment Clause of the United States Constitution, which provides: "Congress shall make
no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ."
U.S. Const. Amend. 1. ""The clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another." Larson v. Valenle, 456 U.S. 228, 244
(1982). As both parties acknowledge in their pleadings, the extant case is squarely controlled by
the Supreme Court's seminal legislative prayer case, Marsh v. Chambers, 463 U.S. 783 (1983),
and the Eleventh Circuit's recent embellishment thereof. Pelphrey v. Cobb County, 547 F.3d
In Marsh, the Supreme Court considered a challenge to the Nebraska State Legislature's
practice of beginning each of its sessions with a prayer offered by a chaplain paid from the
public lisc. 463 U.S. at 784-785. The Court noted that "[t]he opening of sessions of legislative
and other deliberative public bodies with prayer is deeply embedded in the history and tradition
of this country." Id. at 786. The Court refused lo apply the traditional establishment clause test
provided by Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), noting that because the First
12
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 13 of 23 PageID 231
Congress had reached agreement on the language of the Bill of Rights only three days after
authorizing the appointment of paid chaplains, the Framers "[cjlearly . . . did not view paid
legislative chaplains and opening prayers as a violation of [the First] Amendment." Marsh, 463
U.S. at 788.
The Marsh Court concluded that, because "the practice of opening legislative sessions
with prayer has become pari of the fabric of our society," Id. at 792, the fact that the Nebraska
Legislature had employed the same Presbyterian chaplain for sixteen years did not violate the
impermissible motive." Id. at 793. As for the practice of paying the chaplain a salary with
public funds, that too was constitutionally permissible because "remuneration is grounded in
historic practice initiated . . . by the same Congress that drafted the Establishment Clause of the
First Amendment." Id. at 794. Finally, the Court made clear that it was not interested in
The content of the prayer is not of concern to judges where, as here, there is no
indication that the prayer opportunity has been exploited to proselytize or advance
any one. or to disparage any other, faith or belief. That being so. it is not for us to
embark on a sensitive evaluation or to parse the content of a particular prayer.
Id. In Marsh, the Supreme Court thus made clear that legislative prayer is entitled to
faith or belief, such government affiliation with religion might, in certain cases, run afoul
Union.. 492 U.S. 573. 611 (1989) (explaining that "legislative prayers that have the effect
of affiliating the government with one specific faith or belief violate the Establishment
13
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 14 of 23 PageID 232
Twenty-five years after Marsh, the Eleventh Circuit had Ihe opportunity to further
Cobb County. In Pelphrey, a group of taxpayers challenged the prayer practices of both
the Cobb County Commissionand Ihe Cobb County Planning Commission. 547 F.3d at
1267. Bolh bodies had "a long tradition of opening their meetings with prayer by
volunteer clergy invited by County personnel on a rotating basis." Id. The plaintiffs
contended that 96.6 percent of the clergy selected lo speak between 1998 and 2005 were
Chrislian, but the record reflected that during that same lime period members of the
Jewish. Unitarian Universalist, Muslim, and Baha'i faiths had also performed opening
invocations. Id. Throughout the decade preceding litigation, the court noted that 70
percent of the County Commission prayers and 68 percent of the Planning Commission
contained Christian references, but that there were also "occasional" references to the
Jewish and Muslim faiths. Id. Invocation speakers were not paid to present the prayers,
though the County expended municipal funds in selecting, inviting, and thanking the
speakers, and a county employee had personal autonomy to select the actual speakers that
In Pelphrey. the court first reaffirmed Marsh's teaching that the area of legislative
prayer is "excepted from the traditional analysis under the Establishment Clause." i.e., the
Lemon test. Id. at 1269. In analyzing whether legislative prayer had been exploited to
advance or disparage a particular creed, the court analyzed the nature or content of the
prayers themselves, the identity of the speakers, and the selection procedures employed
by the County. Id. at 1277. Ultimately. Ihe court rejected the plaintiffs' argument that
2As noted earlier, by the time the Eleventh Circuit considered thequestion, bolh theCounty Commission and the
County Planning Commission had discontinued their previous practice and instead employed "a master list to select
randomly a speaker to offer the prayer at a meeting." Id at 1268.
14
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 15 of 23 PageID 233
the sectarian nature of the prayers at issue rendered them constitutionally repugnant. Id.
at 1271 ("The taxpayers argue that Allegheny requires us to read Marsh narrowly to
permit only nonsectarian prayer, but they are wrong."). That said, the sectarian or
nonsectarian nature of the prayers at issue is "one factor in this fact-intensive analysis."
Id. And while the Eleventh Circuit in Pelphrey declined to parse the content of the actual
prayers, it noted that the content of the prayers might become an issue forjudicial
scrutiny upon a showing that the prayer practice was used to advance one particular faith
After finding that most of the County's practices were well within the confines of
Marsh, the Pelphrey court next analyzed ihe County Planning Commission's selection
based upon an "'impermissible motive," that is. "based on [their] particular beliefs." Ld. at
1281. Because the deputy clerk of the Planning Commission had been issuing invitations
to speakers using a phone book with lines drawn though certain categories of faiths (e.g.,
faiths had been invited to offer a prayer during Ihe relevant time period, the court held
that the selection practice "categorically excluded" certain faiths and was
Applying the dictates of Marsh and Pelphrey to the facts of the case at bar, the Court
must bear in mind that ""Establishmenl Clause challenges are not decided by bright-line rules,
but on a case-by case basis with the result turning on the specific facts.'" Pelphrey, 547 F.3d at
1268 (quoting G/assrolh v. Moore. 335 F.3d 1282, 1288 (1 lth Cir. 2003)); see King v. Richmond
Cnty. .331 F.3d 1271, 1276 (1 Ith Cir. 2003) (explaining that the evaluation of Establishment
15
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 16 of 23 PageID 234
Plaintiffs allege that thirty-three of the thirty-four invocation speakers for the Lakeland City
Commission since May 18, 2009 have been Christian and that the one non-Christian speaker was
asked to oiler a prayer essentially as a tactic in preparation for this litigation. (Doc. 10, Doc. 21).
Defendants contend that, whatever may have previously been the case, because Resolution 10-
041 was specifically tailored to meet the requirements of Pelphrey, Plaintiffs cannot prevail.
Defendants' argument, which essentially rehashes its mootness attack, misses the point. At the
motion to dismiss stage, this Court first disregards any legal conclusions contained in the
Plaintiffs" complaint and then, taking the well-pleaded facts as true, determines whether "they
plausibly give rise to an entitlement to relief." Iqbal, 129 S. Ct. at 1950; seeAm. Dental Ass'n,
Thus, the dispositive issue at thisjuncture is whether Plaintiffs allege sufficient facts such
that it is "plausible" to believe that the City of Lakeland exploited a prayer practice '"to
proselytize or advance any one, or to disparage any other, faith or belief" Pelphrey, 547 F.3d at
1270 (quoting Marsh, 463 U.S. at 795). Given the sheer number of Christian prayers (and the
timing of the only non-Christian speaker) and the potential that Plaintiffs might demonstrate
selection process, the Court reluctantly concludes that Plaintiffs have alleged facts that could
"plausibly give rise to an entitlement to relief." Iqbal, 129 S. Ct. at 1950. The Court's decision
is bolstered in that the fact the "fact-intensive analysis" upon which summary judgment will turn
requires discovery—after all, the "smoking gun" phone book in Pelphrey, in which various
categories had been struck through and which ended up being pivotal to the plaintiffs' limited
success, could only have been located through the process of discovery. Id. at 1267. Finally,
16
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 17 of 23 PageID 235
the fact that Plaintiffs not only contend that Lakeland's official policy is unconstitutional, but
also that the City maintains a custom and practice that violates constitutional prescriptions,
renders Plaintiffs' allegations regarding the purposeful exclusion of non-Christian believers from
Lakeland's invocation practice sufficient to defeat the motion to dismiss as to Count I. The
Court, however, admonishes Plaintiffs that the failure to present greater factual support for their
assertions after appropriate discovery will result in serious challenges at the summaryjudgment
stage.
Ilaving dispensed with Defendants' motion to dismiss the federal Establishment Clause
claim, the question of Plaintiffs" Florida Establishment Clause contention falls neatly in place.
Fla. Const, art. I, § 3. Bolh Defendants' Motion to Dismiss and Plaintiffs' response thereto
many respects of the Federal Constitution's Establishment Clause. See Doc. 21, at 15 ("The
same facts supporting Plaintiffs' First Amendment claim also support the Florida Constitutional
claim."); Doc. 15, at 14 (attacking Plaintiffs' complaint "[principally" because "the invocations
are permissible under the Establishment Clause of the First Amendment of the United States
Constitution," and then adding further defenses to the more expansive "no aid" provision of the
Florida Constitution). The Florida Constitution not only replicates the U.S. Constitution's
Establishment Clause, but also imposes additional restrictions on slate sponsorship of religious
17
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 18 of 23 PageID 236
activities through the "no aid" provision. See Bush v. Holmes. 886 So.2d 340, 344 (Fla. Dist. Ct.
App. 2004). ajfd in part. 919 So. 2d 392 (Fla. 2006) ("For a court lo interpret the no-aid
provision of article I, section 3 as imposing no further restrictions on ihe state's involvement with
religious institutions than the Establishmenl Clause, it would have to ignore both the clear
meaning and intent of the text and the unambiguous history of the no-aid provision."); Council
for Secular Humanism v. McNeil, 44 So.2d 112. 119 (Fla. Dist. Ct. App. 2010). rev. denied, 41
So.3d 215 (Fla. 2010) (explaining that the first sentence of the Florida Establishment Clause is
consistent with the federal Establishment Clause, but that the "no aid" provision imposes further
restrictions on state actors within Florida). Therefore, given that that Plaintiffs' federal
follows that the Florida Establishmenl Clause claim (Count II) also overcomes Defendants'
challenge.
Plaintiffs' contentions under the Equal Protection Clause of the Fourteenth Amendment
and the Free Speech Clause of the First Amendment rest on far shakier ground. It seems plain
thai "'there is a crucial difference between government speech endorsing religion, which the
Establishment Clause forbids, and private speechendorsing religion, which the Free Speech and
Free Exercise Clauses protect.""" Santa Fe Indep. Sch. Disl. v. Doe. 530 U.S. 290, 302 (2000)
(emphasis in original) (quoting Board ofEd. of'Weslside Cmly. Sch. (Disl. 66) v. Mergens, 496
U.S. 226. 250 (1990) (opinion of O'Connor, J.)). In ihe exlant case. Plaintiffs themselves
concede that "ff|he prayers at issue are government speech." (Doc. 10,1| 45). Mowever,
government speech, such as the Lakeland Cily Commission prayer invocations, is "subject only
18
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 19 of 23 PageID 237
Supervisors. 404 F.3d 276, 288 (4th Cir. 2005) (internal quotation marks omitted) (citing
The proper analytical device in this case is the Establishment Clause, and not the Equal
Protection or Free Speech clauses—Plaintiffs' rccouching their true claim (alleging a violation of
Plaintiffs impliedly admit as much: for example. Plaintiffs cite only two cases under the Equal
Protection subheading of their responsive pleading (Doc. 21). and neither of those cases is
actually an Equal Protection case. See Everson v. Bd. ofEd. ofEwing Twp., 330 U.S. 1. 4 n.2
(1947) ("Appellant does not challenge ihe New Jersey statute or the resolution on the ground that
either violates the equal protection clause of the Fourteenth Amendment by excluding payment
for ihe transportation of any pupil who attends a 'private school run for profit.'"); Church of
Lukumi Bablu Aye, Inc. v. ('ily oflJialeah. 508 U.S. 520, 528 (1993) (noting that the case was
brought under Free Exercise Clause of the First Amendment). Therefore, Plaintiffs' concession
thai the prayers at issue here are government speech is simultaneously a recognition that the
Establishment Clause, and the Establishment Clause only, governs the conduct at issue in this
case. Thus, they have failed to state a claim under the Equal Protection Clause or the Free
Speech Clause and Defendants' Motion to Dismiss Counts III and IV is granted.
C. Qualified Immunity
Defendants also urge this Court to dismiss all claims against Lakeland Mayor Gow Fields
because, at least according to Defendants. Defendant Fields enjoys qualified immunity from suit.
Defendants" conlentions are misplaced: at this point, it is axiomatic that the qualified immunity
"defense is not available . .. [in] § 1983 cases where injunctive relief is sought instead of or in
addition to damages."" Pearson v. Callahan, 129 S. Ct. 808, 822 (2009); see Forlner v. Thomas.
19
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 20 of 23 PageID 238
983 F.2d 1024. 1029 (I lth Cir. 1993). Plaintiffs request injunctive and declaratory relief in
addition to nominal damages on all counts; consequently, qualified immunity will not lead to
In addition, and as Plaintiffscorrectly note, qualified immunity does not protect officials
from claims alleging violations of state law. D'Aguanno v. Gallagher, 50 F.3d 877. 879 (1 lth
Cir. 1995) (""Because qualified immunity is a defense only to federal claims, we hold that the
district court erred in concluding that defendants were entitled to qualified immunity on the
claims for violations of state law." (citing Andreu v. Sapp, 919 F.2d 637. 640 (1 lth Cir. 1990)).
Therefore, Defendant Fields enjoys no qualified immunity with regard Count II of Plaintiffs'
Complaint (Doc. 10). which alleges violations of the Establishment Clause of the Florida
Constitution.
Qualified immunity, however, may well protect Defendant Fields from a judgment of
nominal money damages. Harlow v. Fitzgerald. 457 U.S. 800. 818 (1982). "Qualified immunity
shields government officials who perform discretionary governmental functions from civil
liability so long as their conduct does not violate any 'clearly established statutory or
constitutional rights of which a reasonable person would have known.'" Rehberg v. Paulk, 611
F.3d 828. 838 (1 lth Cir. 2010) (quoting Harlow, 457 U.S. at 818). Decisions regarding qualified
Creighton. 483 U.S. 635. 646 n.6 (1987): see Mitchell v. Forsyth. All U.S. 511. 526 (1985).
Therefore, the dispositive question for this Courtin assessing Defendant Fields' immunity from
damages is whether, taking all of Plaintiffs' allegations as true, the Plaintiffs" complaint alleges
the violation of a clearly established conslilutional right. Gonzalez v. Reno, 325 F.3d 1228, 1233
(I lth Cir. 2003). ""For a constitutional right to be clearly established, "its contours must be
20
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 21 of 23 PageID 239
sufficiently clear that a reasonable official would understand that what he is doing violates that
right.""' Hope v, Peter, 536 U.S. 730, 739 (2002) (quoting Anderson. 483 U.S. at 640).
Christians from the Lakeland City Commission's opening prayers. Given the clear teachings of
Marsh and Pelphrey, such allegations are sufficient to allege a violation of Plaintiffs' clearly
established federal rights. After all. Defendant Fields' involvement in the passage of Resolution
of 10-041. which cites to Marsh and Pelphrey, indicates that he was aware of the relevant
Eleventh Circuit and Supreme Court precedent during the time periods relevant to this litigation,
and a violation of ihe constitutional guidelines set down in those cases would therefore mean that
Defendant Fields had "knowingly violate[d] the law." thus rendering the qualified immunity
defense unavailable to him. Malley v. BHggs, 475 U.S. 341 (1986). Put simply, if Plaintiffs'
from Lakeland City Commission Meetings are true, then Defendant Fields will not be shielded
from Plaintiffs" nominal damages claims by qualified immunity. To the extent that Defendant
Fields challenges the truth of Plaintiffs' factual allegations, a motion for summary judgment is
the proper mechanism by which to dispute those contentions, and this Court is vested with
discretion under Federal Rule of Civil Procedure 26 to "tailor discovery narrowly" to the
In sum. Plaintiffs" claims for injunctive relief will require this Court to reach the pure
ultimately be qualiliedly immune from damages. On the facts of this case, however, that
3Insofar as Plaintiffs' claims for injunctive reliefagainst Defendant fields survive the instant motion, however,
Plaintiffs will likely be permitted to conduct normal discovery with regard to those claims. Therefore, the practical
effect such limitations might actually have on the overall scope of discovery is unclear.
21
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 22 of 23 PageID 240
analysis is best undertaken at summary judgment, not on the instant motion to dismiss.
Accordingly, Defendants' Motion to Dismiss Defendant Fields from this case in his individual
capacity is denied.
Defendants finally argue that ihe claims against Defendant Fields in his official capacity
are duplicative of Plaintiffs' claims against the City and must therefore be dismissed. As
Defendants correctly note, as long as a local government receives notice and the opportunity to
respond, "an official-capacity suit is, in all respects other than name, to be treated as a suit
against Ihe entity." Kentucky v. Graham. 473 U.S. 159. 169-170 (1985) (citing Brandon v. Holt,
469 U.S. 464, 471-472 (1985)). Therefore, because Plaintiffs assert identical claims against the
City itself, those claims against Defendant Fields in his official capacity are "redundant" and
must be dismissed. Busby v. Cily ofOrlando. 931 F.2d 764, 776 (1 lth Cir. 1991). Insofar as
Plaintiffs seek a remedy from Defendant Fieldshimself, the survival of their claims against him
in his individual capacity provides the proper avenue for the pursuit of such relief. E.g. Hafer v.
22
Case 8:10-cv-01538-EAK-MAP Document 25 Filed 03/15/11 Page 23 of 23 PageID 241
ORDERED that Defendants', City of Lakeland and Gow Fields. Motion to Dismiss
(Doc. 15) be GRANTED IN PART, as to Counts III and IV of the First Amended Complaint,
and DENIED IN PART, as to Counts I and II. Additionally, Defendants' Motion to Dismiss the
claims against Defendant Fields is GRANTED as to the claims brought against him in his
official capacity and DENIED as lo Ihe claims brought against him in his individual capacity.
The Defendants have ten (10) days from this date to answer the complaint.
DONE AND ORDERED in Chambers, in Tampa. Florida this 15th of March, 2011.
23