The Satanic Temple, Inc. v. City of Scottsdale ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE SATANIC TEMPLE, INC.; et al., No. 20-15338
Plaintiffs-Appellants, D.C. No. 2:18-cv-00621-DGC
v.
MEMORANDUM*
CITY OF SCOTTSDALE,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, Senior District Judge, Presiding
Argued and Submitted March 18, 2021
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and LYNN,** District Judge.
Appellants The Satanic Temple, Inc., Michelle Shortt, United Federation of
Churches LLC, Adversarial Truth LLC, and The Satanic Temple (collectively called
“TST” or “Appellants”) sued Appellee the City of Scottsdale (“the City” or
“Appellee”) pursuant to 42 U.S.C. § 1983, alleging that the City discriminated
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Barbara M. G. Lynn, Chief United States District Judge for the
Northern District of Texas, sitting by designation.
against TST on the basis of TST’s religious beliefs, after the City declined to permit
TST to give a religious invocation at a City Council meeting. After a two-day bench
trial, the district court entered judgment in favor of the City, finding that TST had
failed to prove by a preponderance of the evidence that the City had discriminated
against TST on the basis of TST’s religious beliefs or identity. Following the district
court’s judgment, TST filed a motion for supplemental and amended findings
(“Motion for Reconsideration”) that was denied, except for one additional finding
that was made by the district court. This appeal followed.1
We have jurisdiction under 28 U.S.C. § 1291. A district court’s factual
findings in a bench trial are reviewed for clear error, and its conclusions of law are
reviewed de novo. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th
Cir. 2008) (en banc). “[W]hen an appellate court reviews a district court’s factual
findings, the abuse-of-discretion and clearly erroneous standards are
indistinguishable.” United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009)
(en banc) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401 (1990)). A
district court abuses its discretion if “application of the correct legal standard was
(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in inferences that may be
drawn from the facts in the record.’” Id. at 1262 (quoting Anderson v. City of
1
The parties are familiar with the facts and we recite only those facts necessary to decide the
issues on appeal.
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Bessemer City, N.C., 470 U.S. 564, 577 (1985)). Evidentiary rulings are reviewed
for an abuse of discretion and are reversed only if a ruling is “both erroneous and
prejudicial.” Wagner v. Cnty. of Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2013).
Finally, “[t]he district court is given broad discretion in supervising the pretrial phase
of litigation, and its decisions regarding the preclusive effect of a pretrial order . . .
will not be disturbed unless they evidence a clear abuse of discretion.” Jorgensen v.
Cassiday, 320 F.3d 906, 913 (9th Cir. 2003) (quoting Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citing Miller v. Safeco Title
Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985))).
TST’s Motion for Reconsideration contained many new arguments that had
not been framed in the Final Pretrial Order, including various facial challenges to
the City’s policy for selecting groups to give invocations at City Council meetings.
The district court did not abuse its discretion in finding that issues not framed in the
Final Pretrial Order and raised for the first time in TST’s Motion for Reconsideration
were waived. Under Rule 16(e) of the Federal Rules of Civil Procedure, a pretrial
order controls the course of the action, unless modified after a final pretrial
conference to prevent manifest injustice. Fed. R. Civ. P. 16(e). We have held that
“issues not preserved in the pretrial order have been eliminated from the action.”
See S. Cal. Retail Clerks Union & Food Emps. Joint Pension Tr. Fund v. Bjorklund,
728 F.2d 1262, 1264 (9th Cir. 1984) (citing United States v. Joyce, 511 F.2d 1127,
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1130 n.1 (9th Cir. 1975)). Further, where TST did not raise or analyze issues in its
Opening Brief to this court, those issues were also waived. “Our circuit has
repeatedly admonished that we cannot ‘manufacture arguments for an appellant’ and
therefore we will not consider any claims that were not actually argued in appellant’s
opening brief.” Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.
2003) (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir.
1994)). In its opening brief, TST failed to challenge the district court’s
determination that TST had waived arguments not raised in the Final Pretrial Order,
so TST has waived this challenge on appeal.
The district court did not err in entering judgment in favor of the City. A
municipality can only be held liable under 42 U.S.C. § 1983 when “execution of a
government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may be fairly said to represent official policy, inflicts the injury that
the government as an entity is responsible for under § 1983.” Monell v. Dep’t of
Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). Under Monell, the City can
only be held liable if the policymaker (i) carried out a facially discriminatory policy,
or (ii) carried out its decision making in an unlawful or discriminatory manner that
could “fairly be said to represent official policy.” See id.; see also Lytle v. Carl, 382
F.3d 978, 982 (9th Cir. 2004).
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The district court analyzed TST’s Establishment Clause and Equal Protection
claims under the second theory of Monell liability, whether the policymaker carried
out the decision making in an unlawful or discriminatory manner, because TST did
not argue at trial that the City’s policy was facially discriminatory. In Town of
Greece v. Galloway, the Supreme Court held that when legislative bodies engage in
legislative prayer, they cannot pick and choose from religions, although the
Constitution does not require them to search outside their borders for religious
balancing. 572 U.S. 565, 585–86 (2014). However, the Court suggested that when
a city discriminates because of “an aversion or bias . . . against minority faiths,” it
violates the Establishment Clause. Id. at 585. Discriminatory intent is also required
to establish a violation of the Equal Protection Clause. Vill. of Arlington Heights v.
Metro Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977); see also Ave. 6E Invs., LLC
v. City of Yuma, 818 F.3d 493, 504 (9th Cir. 2016) (“A plaintiff does not have to
prove that the discriminatory purpose was the sole purpose of the challenged action,
but only that it was a motivating factor.”) (internal quotation marks and citation
omitted).
The district court made factual findings that Acting City Manager Brian
Biesemeyer’s testimony was credible, that Biesemeyer was responsible for all
administrative decisions not delegated to another City officer, that he had exercised
his administrative power to determine if TST was authorized by city policy to give
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the prayer after conferring with the City Attorney’s office, and that TST’s largely
circumstantial case for discrimination hinged on facts Biesemeyer was unaware of
or unaffected by. TST fails to demonstrate that any of the district court’s factual
findings were erroneous. After weighing the credibility of the witnesses, the district
court properly concluded that TST had failed to prove by a preponderance of the
evidence that TST’s religious beliefs were a factor, let alone a substantial motivating
factor, in Biesemeyer’s decision not to approve TST to give a legislative prayer.
Therefore, the district court did not err in determining that TST failed to show an
Establishment Clause or Equal Protection Clause violation under Monell.
Appellants complain that the district court erred in excluding TST’s Exhibits
5 and 8 as inadmissible hearsay. Under Federal Rule of Evidence 801(d)(2)(D), a
statement may be admitted as an exception to the hearsay rule if the statement is
offered against an opposing party and “was made by the party’s agent or employee
on a matter within the scope of that relationship,” while it existed. Fed. R. Evid.
801(d)(2)(D). At trial, TST offered Exhibits 5 and 8, e-mails from two City
Councilmembers that expressed opposition to TST giving an invocation at a City
Council meeting. The district court correctly concluded that the e-mails were not
admissible under Rule 801(d)(2)(D), and were inadmissible as hearsay, because TST
provided no evidence to show that either Councilmember was acting as an agent of
the City in connection with sending the e-mails. See Fed. R. Evid. 801(d)(2).
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Additionally, TST cannot demonstrate prejudice from the district court’s exclusion
of this evidence. The district court correctly found that even if the e-mails had been
admitted, they would not alter the outcome of the case, because TST had not
presented any evidence that Biesemeyer ever saw or knew about the e-mails or spoke
with the Councilmembers about their views. The district court’s exclusion of the
exhibits was not an abuse of discretion.2 See Wagner, 747 F.3d at 1052.
AFFIRMED.
2
The City requests that the Court strike the fifth volume of TST’s Excerpts of Record, comprising
pages 559 through 707, because the documents lack the exhibit cover sheets affixed by the deputy
clerk of the district court, are not copies of the original trial exhibits, and do not correspond with
the designated exhibit numbers offered at trial. The motion is GRANTED. This Court does not
consider documents that were not filed with the district court. Kirshner v. Uniden Corp. of Am.,
842 F.2d 1074, 1077 (9th Cir. 1988) (internal citations omitted) (“Papers not filed with the district
court or admitted into evidence by that court are not part of the clerk’s record and cannot be part
of the record on appeal.”).
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