William Brennan v. William Paterson College , 492 F. App'x 258 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 11-4296
______________
WILLIAM J. BRENNAN,
Appellant
v.
WILLIAM PATERSON COLLEGE; TOWNSHIP OF WAYNE;
BRIAN GORSKI; SANDRA L. MILLER; JOHN DOES 1-5,
being agents, servants and employees of each as a continuing
investigation may reveal; JOHN DOES 5-10, who are fictitiously
named because their true identities are unknown
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 11-cv-06101)
Hon. Faith S. Hochberg, District Judge
______________
Argued June 26, 2012
BEFORE: FISHER and GREENBERG, Circuit Judges,
and OLIVER, District Judge*
(Filed: August 14, 2012)
______________
____________________
*Honorable Solomon Oliver, Jr., Chief Judge of the United States District Court for the
Northern District of Ohio, sitting by designation.
Donald F. Burke (argued)
45 Gale Road
Brick, NJ 08723
Attorney for Appellant
Jeffrey S. Chiesa
Attorney General of New Jersey
Lewis A. Scheindlin
Assistant Attorney General
Melissa T. Dutton (argued)
Deputy Attorney General
Richard J. Hughes Justice Complex
Trenton, NJ 08625-0000
Attorneys for Appellees William Paterson
University, Brian Gorski and Sandra L. Miller
Joseph Michael Morris, III (argued)
McElroy, Deutsch, Mulvaney & Carpenter
100 Mulberry Street
Three Gateway Center
Newark, NJ 07102-0000
Attorney for Appellee Township of Wayne
______________
OPINION OF THE COURT
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on an appeal from a November 3, 2011
order of the District Court denying plaintiff William J. Brennan’s motion for a
preliminary injunction in this action in which he alleges that the defendants, the
Township of Wayne (“Township”) and William Paterson University (“WPU”), a New
2
Jersey state university located in the Township, in violation of the First Amendment and
other state and federal law, illegally denied him permission on two occasions to use
public access cable television channels the defendants control to air episodes of the
television program, “The New Jersey Civil Circus.” Brennan produces this program,
which is devoted to airing political commentary. The defendants denied him permission
the first time because they regarded some of the material in the episode that he sought to
air to be offensive and because the episode disclosed a private telephone number. They
denied him permission the second time because he had become a candidate for an elected
office and a Township ordinance precludes such candidates from hosting or producing
programming on its channels. In addition to the Township and WPU, Brennan included
as defendants WPU officials Brian Gorski and Sandra Miller, the WPU representatives
who informed Brennan that WPU would not air his requested programming. We refer to
WPU, Gorski, and Miller collectively as the WPU Defendants. For the following
reasons, we will dismiss this appeal as moot. 1
II. FACTS AND PROCEDURAL HISTORY
Over the last several decades, cable operators have set aside channel capacity for
the creation of public, governmental, and educational access channels (“PEG channels”)
for municipalities in exchange for the municipalities awarding them cable franchises.
See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 760, 116
1
On July 2, 2012, about one week after oral argument on this appeal, the WPU
Defendants filed a motion to dismiss the appeal as moot. Brennan opposed the motion
but in accordance with this opinion we now grant the motion.
3
S. Ct. 2374, 2394 (1996). Cablevision supplies cable television within the Township, and
provides two PEG channels—76 and 77—to the Township through a franchise agreement
with the Township. The Township uses channel 77 for public and governmental
purposes and allows WPU access to channel 76 for public and educational purposes.
Prior to October 1, 2010, Brennan, a Township resident, submitted an episode of
the New Jersey Civil Circus referred to as episode 1, for airing on WPU’s channel. In
response, on October 1, 2010, Gorski e-mailed Brennan and advised him that after
“conversations with our Cable Advisory Board,” he had decided that WPU’s channel
would not air this episode because it contained the word “tits” and mentioned a private
phone number thus violating WPU’s “general rules of conduct.” App. at 24. In the e-
mail, Gorski stated that WPU would “be happy to re-review [Brennan’s] programming
request” if those issues were remedied. Id.
On April 28, 2011, Brennan submitted another episode — “episode 3” — to WPU
for broadcast. 2 But shortly thereafter on May 1, 2011, he declared his candidacy for the
New Jersey State Assembly. On June 2, 2011, Miller notified Brennan that WPU, which
“abide[s] by the Township of Wayne’s code concerning cable TV,” app. at 26, could not
air episode 3 because of Township Ordinance Chapter 5A-8 (“Ordinance 5A-8”), which
states in relevant part: “A host/coproducer who becomes a candidate [for public office]
2
The record does not seem to explain if there was an episode 2 and if so what happened
to it. We also note that the record is somewhat confusing with respect to the division of
administrative responsibility between the Township and WPU with respect to channels
76 and 77 as it appears that WPU directly operated channel 76 but apparently had some
authority over channel 77 as well. For our purposes, however, the distinction is
immaterial so we do not explore it further.
4
will not be permitted to have a role in the production of [a] program.” Id. at 112. 3
Eventually, however, the Township changed its position with respect to episode 3,
thereby causing the New Jersey Attorney General on October 28, 2011, as counsel for
WPU, to write to Brennan’s counsel informing him that “[t]he University was advised by
the Township of Wayne by letter dated October 27, 2011 that Ordinance 5A-8 does not
permit it to deny access of [episode 3] . . . . Based on the position now taken by the
Township, you are advised that the University, without waiving any privileges, will air
[e]pisode 3.” Id. at 68. 4 The letter also informed Brennan’s counsel that WPU was
reviewing Brennan’s request to air episode 4 of his television program pursuant to “the
University’s general rules of conduct,” and that it first had to be submitted to WPU’s
Cable Advisory Board. Id. at 69. WPU represents that it did air episode 4, and it is
unaware as to whether Brennan submitted any other episodes for review.
On October 17, 2011, Brennan filed this action in the District Court against the
Township and WPU seeking injunctive relief and damages by reason of the alleged
unlawful refusal of WPU 5 to broadcast his programs under the applicable code of
3
The ordinance is available at http://clerkshq.com/default.ashx?clientsite=Wayne-nj.
4
It is unclear from the record why WPU and the Township determined that they would
not enforce the ordinance against Brennan, but at oral argument the Township’s attorney
indicated it had been “advised of the constitutional issues and concerns with the
ordinance.”
5
The WPU Defendants acknowledge that they are state actors for purposes of section
1983 and the First Amendment. See Democratic Nat’l Comm. v. Republican Nat’l
Comm., 673 F.3d 192, 200 (3d Cir. 2012) (“[T]he First Amendment applies only to state
actions.”); Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175-76
(3d Cir. 2010) (“To prevail on a § 1983 claim, a plaintiff must allege that the defendant
5
conduct, and challenging the constitutionality of Ordinance 5A-8. Asserting claims
under 42 U.S.C. § 1983, the New Jersey Constitution, and the New Jersey Civil Rights
Act, N.J. Stat. Ann. § 10:6-1 et seq., Brennan claimed that Ordinance 5A-8 violates the
First Amendment and the New Jersey Constitution’s free speech and free assembly
provisions because it is a content-based prior restraint on speech and is unconstitutionally
vague.
Brennan also advanced another claim that defendants’ “censorship” of his
programs under Ordinance 5A-8 and the code of conduct violated the free speech
provisions of the federal and New Jersey constitutions. Finally, Brennan’s complaint
contended that defendants’ action in denying him access to the Township’s channels
violated the Cable Communications Policy Act of 1984, codified as amended at 47
U.S.C. § 531 et. seq. (the “Cable Act”), which authorizes local governments’ cable
franchising authorities to require cable operators to set aside cable channels for “public,
educational or governmental use,” 47 U.S.C. § 531(a), and provides, as relevant here, that
“a cable operator shall not exercise any editorial control over any public, educational, or
governmental use of channel capacity.” Id. § 531(e).
On the day that Brennan filed his complaint, he filed a motion asking the District
Court to enter a preliminary injunction that provided:
acted under color of state law, in other words, that there was state action.”). Accordingly,
we accept Brennan’s allegation that the WPU Defendants are state actors for purposes of
this appeal. See San Filippo v. Bongiovanni, 961 F.2d 1125, 1134 n.12 (3d Cir. 1992)
(“It is clear that Rutgers, as a state university, is a state actor.”).
6
(1) [Defendants were preliminarily enjoined] from denying access to
plaintiff William J. Brennan to the Wayne Township public access cable
television channel to broadcast his show ‘The New Jersey Civil Circus’;
and
(2) [D]efendants . . . allow plaintiff William J. Brennan immediate access to
the Wayne Township public access cable television channels 76 and 77 to
broadcast his show ‘The New Jersey Civil Circus’; and [stating that]
(3) Defendants are temporarily enjoined from applying the Ordinance
[Chapter 5A-8] of the Township of Wayne to deny access to the public
access cable television they operate and control.
App. at 45. The WPU Defendants opposed the motion but the Township merely
submitted a letter to the District Court “in lieu of formal opposition” asserting that
Brennan’s motion was moot with respect to the Township because it had agreed to air the
episodes of The New Jersey Civil Circus that Brennan sought to air and because it agreed
not to enforce Ordinance 5A-8 against him. App. at 70-71.
The District Court on November 3, 2011, denied Brennan’s motion for a
preliminary injunction in a footnoted order. The Court held that Brennan was unlikely to
succeed on the merits because the WPU’s cable channel was a “limited” or “designated”
public forum, so that WPU could place reasonable restrictions on the programs aired on
the channel to ensure that the channel be used in a way that was consistent with its
educational mission. See Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d
1242, 1262 (3d Cir. 1992) (holding that a governmental entity “is obligated only to
permit the public to exercise rights that are consistent with the nature of [the
governmental entity] and consistent with the government’s intent in designating [the
governmental entity] as a public forum”). The Court also held that Brennan was unlikely
7
to prevail on his Cable Act claim because WPU “is neither a cable operator nor a
franchising authority” as defined by the Cable Act. App. at 4. Finally, the Court
determined that Brennan would not suffer irreparable harm from the denial of the motion
for a preliminary injunction because WPU “first declined to air Plaintiff’s episode 1 in
October 2010; Plaintiff fails to prove how he would be irreparably harmed now, a year
later.” Id. 6
On November 30, 2011, Brennan appealed from the District Court’s November 3
order. While this appeal was pending, the WPU Defendants on January 17, 2012, filed a
motion to dismiss the action insofar as it was against them in the District Court, arguing,
inter alia, that WPU’s restrictions on Brennan’s content were reasonable under the First
Amendment. The WPU Defendants further contended that private persons cannot assert
a right of action under the Cable Act and that Gorski and Miller were entitled to qualified
6
The District Court’s November 3, 2011 order did not specifically address Brennan’s
claims with regard to the Township, but inasmuch as the order denied his motion seeking
a preliminary injunction in its entirety by its terms the order applied to all of the
defendants. The order, however, seems to be internally inconsistent for although
Brennan moved for a preliminary injunction, the order contained language suggesting
that the Court was considering a motion for a temporary restraining order though it
denied a motion for a preliminary injunction. Thus, the order indicated that “temporary
restraints, like those requested here, will only be granted if there is a possibility that
irreparable injury will occur before a hearing on the preliminary injunction” but the last
sentence in the order recited that “Plaintiff’s request for a preliminary injunction is
denied.” This distinction is important because an order denying a motion for a temporary
restraining order as distinguished from an order denying a motion for a preliminary
injunction generally is not appealable. See Robinson v. Lehman, 771 F.2d 772, 782 (3d
Cir. 1985). The parties, though undoubtedly aware of this inconsistent language, have
treated this case as involving an appeal from an order denying a motion for a preliminary
injunction and, after our review of the record, we agree that the District Court intended to
deny a motion for a preliminary injunction.
8
immunity from damages in this action. On March 27, 2012, the District Court granted
the WPU Defendants’ motion and dismissed all claims against them. See Brennan v.
William Paterson Coll., D.C. Civil No. 11-6101 (D.N.J. Mar. 20, 2012). Accordingly,
the Township has remained as the only defendant in the District Court.
III. JURISDICTION
The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367.
Brennan appealed from the District Court’s order under 28 U.S.C. § 1292(a)(1), which
allows an interlocutory appeal as a matter of right from an order denying a preliminary
injunction. However, both sets of defendants contend, though for different reasons, that
this appeal is moot. We agree, and will dismiss this appeal.
Our jurisdictional inquiry must precede any discussion of the merits, for if a court
lacks jurisdiction as, for example, when a case is moot, but the court nevertheless
addresses the merits of the case, it goes “beyond the bounds of authorized judicial action
and thus offends fundamental principles of separation of powers.” Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94, 118 S. Ct. 1003, 1012 (1998). Thus, if we determine
that the appeal is moot and we therefore do not have jurisdiction, our “only function
remaining [will be] that of announcing the fact and dismissing the cause.” Id. at 94, 118
S.Ct. at 1012 (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).
A. The WPU Defendants
A plaintiff must have Article III standing to seek a preliminary injunction and if he
does not have such standing we are without jurisdiction to entertain his appeal from an
9
order denying his motion for that relief beyond reviewing the aspect of the order holding
that he does not have standing. A plaintiff must establish three elements to have
standing:
(1) the plaintiff must have suffered an injury in fact—an invasion of a
legally protected interest which is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) there must be a
causal connection between the injury and the conduct complained of; and
(3) it must be likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.
Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (quoting United
States v. Hays, 515 U.S. 737, 743, 115 S. Ct. 2431, 2435 (1995)). The principles of
standing and mootness and thus of jurisdiction are complementary because “[a] case is
moot when the issues presented are no longer live or the parties lack a legally cognizable
interest in the outcome.” Donovan ex. rel. Donovan v. Punxsutawney Area Sch. Bd., 336
F.3d 211, 216 (3d Cir. 2003) (citation and internal quotation marks omitted). In
particular, “[t]he availability of declaratory and injunctive relief depends on whether
there is a live dispute between the parties.” Powell v. McCormack, 395 U.S. 486, 517-
18, 89 S. Ct. 1944, 1962 (1969) (alteration omitted). Thus, “[i]f developments occur
during the course of adjudication that eliminate a plaintiff’s personal stake in the outcome
of a suit or prevent a court from being able to grant the requested relief, the case must be
dismissed as moot.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir.
1996). The “requirement that a case or controversy be actual and ongoing extends
throughout all stages of federal judicial proceedings, including appellate review.”
Donovan, 336 F.3d at 216 (citation, internal quotation marks, and alteration omitted).
10
This appeal is moot with respect to the order denying Brennan’s motion for a
preliminary injunction against the WPU Defendants from which he has appealed because
the District Court has dismissed those defendants from the case during the pendency of
this appeal. 7 We have observed that an “interlocutory appeal from the denial of [a]
motion for a preliminary injunction [is] rendered moot by the issuance of [a] district
court’s final order on the merits.” Hankins v. Temple Univ., 829 F.2d 437, 438 n.1 (3d
Cir. 1987). Accordingly, in Hankins, though we entertained the plaintiff’s appeal from a
grant of summary judgment against her, we declined to “address the propriety of the
district court’s [previous] denial of [the plaintiff’s] motion for preliminary injunctive
relief.” Id; see also Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.,
527 U.S. 308, 314, 119 S. Ct. 1961, 1966 (1999) (“Generally, an appeal from the grant of
a preliminary injunction becomes moot when the trial court enters a permanent
injunction, because the former merges into the latter.”).
A court may enter a preliminary injunction as a temporary measure to maintain the
status quo until the court renders its ultimate decision on the merits. Anderson v. Davila,
125 F.3d 148, 156 (3d Cir. 1997). Accordingly, if the District Court had granted
Brennan’s motion and had entered a preliminary injunction as he had sought, the
injunction would have terminated with respect to the WPU Defendants when the Court
7
“Although an appeal usually deprives the district court of jurisdiction to proceed, an
appeal under 28 U.S.C. § 1292(a)(1) from the denial of an interlocutory injunction is an
exception to that norm.” In re Mann, 311 F.3d 788, 793 (7th Cir. 2002). Thus, the
District Court retained jurisdiction over the case with respect to all defendants when it
dismissed the WPU Defendants.
11
entered its judgment in their favor. In granting the WPU Defendants’ motion to dismiss
after Brennan appealed, the Court decided the same issues that it previously had decided
when it denied Brennan’s motion for a preliminary injunction. 8 In particular, it again
cited to our decision in Kreimer and concluded that WPU imposed reasonable restrictions
on Brennan’s programming in light of Channel 76’s educational purpose. It would be
strange for us to reverse the order denying the motion for a preliminary injunction for if
we did so we would have to conclude that Brennan had demonstrated a likelihood of
success on the merits against the WPU Defendants even though he already had been
unsuccessful against them at the final stage of the case in the District Court.
Inasmuch as the District Court has rendered its final ruling on the merits in the
WPU Defendants’ favor, the question of whether the Court correctly denied Brennan’s
motion for a preliminary injunction against the WPU Defendants is moot and thus we
lack jurisdiction to entertain this appeal on the merits with respect to those defendants.
Though Brennan correctly argues that we have jurisdiction over an appeal from the denial
of his motion for a preliminary injunction under 28 U.S.C. § 1292(a)(1), that argument
misses the point. Section 1292(a)(1) is a limited exception to the final judgment rule,
only available to “[permit] litigants to effectually challenge interlocutory orders of
serious, perhaps irreparable consequence.” Carson v. Am. Brands, Inc., 450 U.S. 79, 84,
101 S. Ct. 993, 996 (1981) (quoting Balt. Contractors, Inc. v. Bodinger, 348 U.S. 176,
8
We are not implying that our result would be different if the District Court had
dismissed the case for reasons distinct from those to which it referred when it denied the
motion for a preliminary injunction. Rather, we merely are stating what actually
happened.
12
181, 75 S. Ct. 249, 252 (1955)). It therefore follows that when, as here, a district court
enters a final judgment on the merits, an appeal under section 1292(a)(1) from an earlier
order denying a preliminary injunction would serve no purpose and, though the earlier
order ordinarily would be appealable, in that circumstance the appeal has become moot.
See U.S. Phillips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1093 (9th Cir. 2010) (“A
preliminary injunction imposed according to the procedures outlined in Federal Rule of
Civil Procedure 65 dissolves ipso facto when a final judgment is entered in the cause”);
Madison Square Garden Boxing, Inc. v. Shavers, 562 F.2d 141, 144 (2d Cir. 1977)
(“With the entry of the final judgment, the life of the preliminary injunction [comes] to an
end, and it no longer [has] a binding effect on any one. The preliminary injunction [is] by
its very nature interlocutory, tentative and impermanent.”).
B. Wayne Township
As it did before the District Court, the Township argues that Brennan’s motion for
a preliminary injunction and thus of Brennan’s appeal from the order denying that motion
are moot insofar as the Township is a party because it agreed not to enforce Ordinance
5A-8 with respect to Brennan. We agree.
The record indicates that although Brennan was a candidate for public office when
he filed his motion for a preliminary injunction he no longer is such a candidate. We
recognize that Brennan argues that this controversy is not moot because this case presents
a question that falls within the “capable of repetition, yet evading review” exception to
the usual rule requiring that a court dismiss a moot case. “The exception applies where
(1) the challenged action is in its duration too short to be fully litigated prior to cessation
13
or expiration, and (2) there is a reasonable expectation that the same complaining party
will be subject to the same action again.” Fed. Election Comm’n v. Wis. Right to Life,
Inc., 551 U.S. 449, 462, 127 S. Ct. 2652, 2662 (2007) (citing Spencer v. Kenma, 523 U.S.
1, 17, 118 S. Ct. 978, 988 (1998)) (internal quotation marks omitted). But the exception
for cases “technically moot but ‘capable of repetition, yet evading review’ is narrow and
available ‘only in exceptional situations.’” Rendell v. Rumsfeld, 484 F.3d 236, 241 (3d
Cir. 2007) (quoting City of L.A. v. Lyons, 461 U.S. 95, 109, 103 S. Ct. 1660, 1669
(1983)).
There is no question that Brennan’s case against the Township is “technically
moot.” Yet some controversies involving elections may fall within the “capable of
repetition, yet evading review” exception cases because “it is reasonable to expect
political candidates to seek office again in the future,” see Belitskus v. Pizzingrilli, 343
F.3d 632, 649 n.11 (3d Cir. 2003), and there sometimes will not be enough time to
resolve election disputes before the conclusion of an election cycle, see Merle v. United
States, 351 F.3d 92, 94 (3d Cir. 2003). However, “[t]o apply the ‘capable of repetition
yet evading review’ exception to otherwise moot appeals of preliminary injunctions
would . . . impermissibly evade the ordinary rule, pursuant to 28 U.S.C. § 1291, that
appellate courts review only ‘final decisions’ of a lower court.” Independence Party of
Richmond Cnty. v. Graham, 413 F.3d 252, 256 (2d Cir. 2005). As we already have
indicated, a preliminary injunction is only a temporary measure intended to prevent
irreparable harm while the matter is being litigated. Thus, “[w]here the event giving rise
to the necessity of preliminary injunctive relief has passed, the ‘harm-preventing function
14
cannot be effectuated by the successful prosecution of an interlocutory appeal from the
denial of interim injunctive relief.’” Id. at 256-57 (quoting CMM Cable Rep., Inc. v.
Ocean Coast Props., Inc., 48 F.3d 618, 621 (1st Cir. 1995)).
In this case Brennan’s appeal against the Township is moot basically because the
election in which he was a candidate long since has been held. But there is more reason
to find that the appeal is moot because there is no foundation on which “the capable of
repetition, yet evading review” exception to the requirement for dismissal of moot cases
could be based inasmuch as Brennan has not represented that he again will be seeking
elected public office and, in any event, does not represent that he is doing so now.
Furthermore, the Township has agreed that it will not enforce Ordinance 5A-8 against
him. Moreover, there is not an extant justicable controversy between Brennan and the
Township before us because any relief we might offer on this appeal from the denial of a
preliminary injunction would not serve the temporary, harm-preventing purpose of such
an injunction. Finally, Brennan’s challenge to Ordinance 5A-8 does not even “evade
review” in this very case because he has continued his case against the Township in the
District Court and seeks, among other remedies, permanent injunctive relief. 9 If
9
We are not determining that the case he now is pursuing in the District Court is or is not
moot in whole or in part. But regardless of whether or not the District Court dismisses
the case as moot our result dismissing this appeal would be the same.
15
Brennan’s case against the Township is ultimately unsuccessful he, of course, may appeal
anew to this Court pursuant to 28 U.S.C. § 1291. 10
V. CONCLUSION
For the reasons given, we will dismiss Brennan’s appeal as moot.
10
We are not expressing any opinion as to whether such an appeal would be moot. The
answer to that question might depend on the relief Brennan is seeking. See Donovan,
336 F.3d at 216-18.
16