Zen Music Festivals v. Stewart , 72 F. App'x 168 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 18, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 02-11132
ZEN MUSIC FESTIVALS, A TEXAS LIMITED LIABILITY COMPANY,
Plaintiff-Appellee,
VERSUS
RAY STEWART,
IN HIS OFFICIAL CAPACITY AS SHERIFF OF ELLIS COUNTY, TEXAS; and
AL CORNELIUS, IN HIS OFFICIAL CAPACITY AS ELLIS COUNTY
ADMINISTRATOR,
Defendants,
VERSUS
JOHN CORNYN, ATTORNEY GENERAL OF THE STATE OF TEXAS,
Intervenor-Appellant.
Appeal from the United States District Court
For the Northern District of Texas, Dallas Division
(02-CV-1998)
Before EMILIO M. GARZA, and DENNIS, Circuit Judges, and VANCE*,
District Judge.
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
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PER CURIAM:**
Intervenor John Cornyn, Attorney General of Texas (“Texas
Attorney General”), appeals from the district court’s September 19,
2002 preliminary injunction enjoining defendants Ray Stewart and Al
Cornelius, the sheriff and administrator of Ellis County
respectively, from enforcing the permit requirement of the Texas
Mass Gathering Act, Tex. Health & Safety Code Ann §§ 751.001-
751.013 (“TMGA”), against plaintiff, Zen Music Festivals, L.L.C.
(“Zen”) with respect to a music concert that was promoted and held
by Zen on September 21, 2002 on the Beaumont Ranch in Ellis County,
Texas. For the reasons stated below, we dismiss this appeal as
moot.
I
Zen promotes and holds annual music festivals in Texas. It
intended to hold a music concert on September 21, 2002 on private
property in Ellis County, Texas that it expected would attract over
5,000 people who would remain at the location for more than five
continuous hours. The TMGA requires, inter alia, a permit for a
“person” such as Zen to hold a “mass gathering,” which is defined
as “a gathering that is held outside the limits of a municipality
and that . . .is expected to attract more than 5,000 persons who
will be at the meeting location for more than five continuous
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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hours.” See TMGA §§ 751.002(2) (defining “person”); 751.003
(describing permit requirement generally); 751.002(1) (defining
“mass gathering”).
Accordingly, on August 28, 2002, Zen applied for a permit to
hold the music concert from defendant Judge Al Cornelius of Ellis
County. See id. § 751.004 (providing that the permit applicant
must apply to the county judge of the county in which the “mass
gathering” is to be held). Judge Cornelius held a hearing and on
September 9, 2002 denied the permit.
On September 13, 2002, Zen filed suit against the defendants
in the district court under 42 U.S.C. § 1983, claiming that the
TMGA is facially invalid under the First Amendment and requesting
a permanent injunction precluding defendants from enforcing the
TMGA. On September 16, 2002, Zen filed an emergency application
for a preliminary injunction, asking the district court to enjoin
the defendants from enforcing the TMGA against Zen in relation to
the September 21, 2002 music concert. On September 18, 2002, the
Texas Attorney General was granted leave to intervene in this case
pursuant to 28 U.S.C. § 2403(b). On September 19, 2002, after a
hearing, the district court issued a preliminary injunction that
prevented defendants from enforcing the permitting requirements of
the TMGA against Zen with respect to the September 21, 2002 music
concert. Zen promoted and held the music concert as scheduled on
September 21, 2002. On October 4, 2002, the Texas Attorney General
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appealed from the preliminary injunction judgment, and on October
8, 2002, the district court stayed all further proceedings in the
case pending appeal.
II
“[A] case is moot when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the
outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)
(internal quotation omitted). “[T]he question is not whether the
precise relief sought at the time an application for injunction was
filed is still available. The question is whether there can be any
effective relief.” Vieux Carre Property Owners v. Brown, 948 F.2d
1436, 1446 (5th Cir. 1991). If there can be no effective relief,
then any decision by the appellate court would be advisory. See
City of Erie v. Pap’s A.M., 529 U.S. 277, 288 (2000).
Courts have established an exception to the mootness doctrine
for “issues capable of repetition, yet evading review.”
Specifically, “[a]lthough a case may be technically moot, a federal
court may nevertheless retain jurisdiction if a continuing
controversy exists or if the challenged problem is likely to recur
or is otherwise capable of repetition.” Vieux Carre, 948 F.2d at
1447. This exception, however, “is inapplicable in those
situations in which the issues underlying the appeal are not moot
in the case remaining before the district court.” Marilyn T. v.
Evans, 803 F.2d 1383, 1385 (5th Cir. 1986) (concluding that the
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exception did not apply where the district court’s denial of a
preliminary injunction was not a final decision on the
constitutionality of the challenged action).
In the specific context of a preliminary injunction, where
“the terms of the injunction . . . have been fully and irrevocably
carried out,” and where any underlying issues remain for a trial on
the merits of the case, the appeal of the preliminary injunction
should be dismissed as moot. University of Texas v. Camenisch, 451
U.S. 390, 398 (1981). It is improper to hear an appeal of a
remaining issue at the preliminary injunction stage because of the
significant differences between a preliminary injunction and a
permanent injunction or other final disposition on the merits of
the case. See id. at 394-95. Specifically, “[t]he purpose of a
preliminary injunction is merely to preserve the relative positions
of the parties until a trial on the merits can be held. Given this
limited purpose, and given the haste that is often necessary if
those positions are to be preserved, a preliminary injunction is
customarily granted on the basis of procedures that are less formal
and evidence that is less complete than in a trial on the merits.”
Id. at 395.
In this case, the Texas Attorney General is appealing a
preliminary injunction that prohibited defendants from enforcing
Texas’ TMGA permit requirements against Zen in relation to a music
concert that has already happened. Because “the terms of the
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injunction have been fully and irrevocably carried out,” any
remaining issues should be considered after the trial on the
merits. Id. at 398. No exceptions exist here because “the issues
underlying the appeal are not moot in the case remaining before the
district court.” Marilyn T., 803 F.2d at 1385. Accordingly, we
dismiss this appeal as moot and remand the case to the district
court for proceedings consistent with this opinion.
DISMISSED and REMANDED.
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