Francene Tearpock-Martini v. Borough of Shickshinny

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-3876
_____________
FRANCENE TEARPOCK-MARTINI,
Appellant
v.
BOROUGH OF SHICKSHINNY; JULE MOORE;
MICHAEL STEEBER; ROSALIE WHITEBREAD;
JAMES WIDO
__________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-12-cv-02223)
District Judge: Honorable James M. Munley
__________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 20, 2014
Before: CHAGARES, GREENAWAY, JR., and
VANASKIE, Circuit Judges
(Filed: June 23, 2014)
Barry H. Dyller, Esq.
Dyller Law Firm
88 North Franklin Street
Gettysburg House
Wilkes-Barre, PA 18701
Counsel for Appellant
John J. Mahoney, Esq.
Siana, Bellwoar & McAndrew
941 Pottstown Pike
Suite 200
Chester Springs, PA 19425
Counsel for Appellees
_____________
OPINION OF THE COURT
_____________
VANASKIE, Circuit Judge.
In 2008, Appellee Borough of Shickshinny
(“Shickshinny”) approved placement of a religious-themed
sign on municipal property near the home of Appellant
Francene Tearpock-Martini (“Tearpock-Martini”). In 2012,
Tearpock-Martini brought this civil rights action, challenging
the placement of the sign as a violation of the Establishment
Clause of the First Amendment of the Constitution of the
United States. At issue in this appeal is whether an
Establishment Clause challenge under 42 U.S.C. § 1983 to a
still-existing monument erected on municipal property is
subject to a state-law statute of limitations. We hold that it is
not. Accordingly, we will vacate the District Court’s ruling
that the Establishment Clause challenge advanced by
2
Tearpock-Martini is time-barred. With respect to her other
claims—that the refusal of Shickshinny to allow her to erect
her own nearby sign violated her rights to free speech and
equal protection of the law—we conclude that Pennsylvania’s
statute of limitations does apply, and will affirm the District
Court’s dismissal of those claims on limitations grounds.
I.
Tearpock-Martini, a resident of Shickshinny,
Pennsylvania, owns property situated at the intersection of
South Main Street and Furnace Street.1 In 2008, a local
pastor sought to place a directional sign for his church near
her property. Tearpock-Martini objected. At an August 2008
meeting, the Shickshinny Borough Council voted to approve
the installation of the sign on the Borough’s right of way
bordering Tearpock-Martini’s property.2 On August 18,
2008, Shickshinny employees installed the sign, which reads:
“Bible Baptist Church Welcomes You!” It has a directional
arrow with “1 BLOCK” written on it, and depicts a gold cross
and a white Bible.
1
Our recitation of the factual background is derived
from Tearpock-Martini’s Amended Complaint. For purposes
of this appeal, we accept as true all facts set forth therein, and
draw all reasonable inferences from such allegations in favor
of the complainant. Warren Gen. Hosp. v. Amgen Inc., 643
F.3d 77, 84 (3d Cir. 2011).
2
Appellees Jule Moore, Michael Steeber, Rosalie
Whitebread, and James Wido are Borough Council members
who voted to approve the sign.
3
To protest the placement of the sign, Tearpock-Martini
installed, on her property directly in front of the church sign,
a posting of her own, which read: “This Church Sign Violates
My Rights As A Taxpayer & Property Owner. Residential
Neighborhoods Are Not Zoned For Advertisement Signs!”
Shickshinny, by way of a letter and also a verbal warning
from its Code Enforcement Officer, told Tearpock-Martini
that she could be charged with summary offenses if she did
not remove her sign. Tearpock-Martini evidently removed
her sign in response to these threats.3 At some unspecified
time thereafter, the town reinforced the installation of the
church sign using heavy equipment and poured concrete.
In November 2012, Tearpock-Martini filed a civil
rights complaint pursuant to 42 U.S.C. § 1983. She later filed
a three-count Amended Complaint. Count One asserts an
Equal Protection claim based upon the refusal to allow her to
erect her own sign; Count Two asserts that Appellees
violated, and continue to violate, the Establishment Clause by
authorizing the installation and ongoing presence of the
church sign; and Count Three avers that Appellees violated
the First Amendment by threatening to prosecute Tearpock-
Martini for installation of her own sign. She seeks injunctive
relief consisting of removal of the church sign, as well as
damages.
Appellees moved to dismiss the Amended Complaint
based on, among other things, Pennsylvania’s two-year
statute of limitations for tort claims. In a Memorandum and
3
Although the Amended Complaint itself is unclear on
this point, Shickshinny seems to concede as much in its
briefing. Appellees’ Br. at 19.
4
Order entered August 19, 2013, the District Court found that
Tearpock-Martini’s claims were time-barred, and granted the
motion to dismiss. Tearpock-Martini filed a timely notice of
appeal.
II.
The District Court had jurisdiction over this case
pursuant to 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction over the District Court’s final order pursuant to
28 U.S.C. § 1291. Our review of a dismissal under Rule
12(b)(6) is de novo. Fowler v. UPMC Shadyside, 578 F.3d
203, 206 (3d Cir. 2009).
III.
The Establishment Clause, which states that “Congress
shall make no law respecting an establishment of religion[,]”
U.S. Const. amend. I, prevents any branch of federal, state, or
municipal government from “act[ing] with the ostensible and
predominant purpose of advancing religion . . . .” McCreary
Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 860 (2005).
Although the precise contours of that command have
historically resisted definition even by our highest Court,4 it is
4
See, e.g., Van Orden v. Perry, 545 U.S. 677, 692
(2005) (Scalia, J., concurring) (characterizing the plurality
opinion as “accurately reflect[ing] our current Establishment
Clause jurisprudence—or at least the Establishment Clause
jurisprudence we currently apply some of the time.”); Utah
Highway Patrol Ass’n v. Am. Atheists, Inc., 132 S. Ct. 12, 17–
19 (2011) (Thomas, J., dissenting from denial of certiorari)
(noting that the display on government property of a crèche,
5
undisputed that religious displays erected by the State,
whether enduring or only temporary, may sometimes stand in
violation of the Constitution. See, e.g., id. at 881 (concluding
that courthouse display of the Ten Commandments violated
the Establishment Clause).
Section 1 of the Civil Rights Act of 1871, codified at
42 U.S.C. § 1983, is the vehicle by which an individual may
sue government officials in tort for violations of
constitutional rights, including those arising under the
Establishment Clause.5 Although federal law provides no
menorah, the Ten Commandments, or a cross “violates the
Establishment Clause, except when it doesn’t.”).
5
In pertinent part, the statute reads:
Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State or
Territory or the District of
Columbia, subjects, or causes to
be subjected, any citizen of the
United States or other person
within the jurisdiction thereof to
the deprivation of any rights,
privileges, or immunities secured
by the Constitution and laws, shall
be liable to the party injured in an
action at law, suit in equity, or
other proper proceeding for
redress . . . .
6
statute of limitations for actions brought under § 1983, state
law may provide a limitations period “if it is not inconsistent
with federal law or policy to do so.” Wilson v. Garcia, 471
U.S. 261, 266–67 (1985) (citing 42 U.S.C. § 1988),
superseded by statute on other grounds, 28 U.S.C. § 1658(a);
see also Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir.
2010). Because the Supreme Court has clarified that “all §
1983 claims should be characterized for statute of limitations
purposes as actions to recover damages for injuries to the
person[,]” Springfield Twp. Sch. Dist. v. Knoll, 471 U.S. 288,
289 (1985), the ostensibly applicable term here is
Pennsylvania’s two-year limitations period applicable to tort
claims, see 42 Pa. Cons. Stat. Ann. § 5524(7).6 The date of
42 U.S.C. § 1983.
6
In pertinent part, the statute reads:
The following actions and
proceedings must be commenced
within two years:
(7) Any other action or
proceeding to recover damages
for injury to person or property
which is founded on negligent,
intentional, or otherwise tortious
conduct or any other action or
proceeding sounding in trespass,
including deceit or fraud, except
an action or proceeding subject to
another limitation specified in this
subchapter.
7
the claim’s accrual, however, continues to be governed by
federal law, see Wallace v. Kato, 549 U.S. 384, 388 (2007),
although state law generally governs tolling and its effects,
see Chardon v. Soto, 462 U.S. 650, 655 (1983).
Tearpock-Martini does not dispute that more than two
years elapsed between the installation of the church sign by
Appellees and the commencement of her lawsuit.7 Instead,
she invokes the continuing-violation doctrine, which “is an
‘equitable exception to the timely filing requirement.’”
Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001)
(quoting West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir.
1995)). In brief, the rule provides that “when a defendant's
conduct is part of a continuing practice, an action is timely so
long as the last act evidencing the continuing practice falls
within the limitations period; in such an instance, the court
will grant relief for the earlier related acts that would
otherwise be time barred.” Brenner v. Local 514, United
Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295
(3d Cir. 1991). The doctrine’s focus “is on affirmative acts of
the defendants.” Cowell, 263 F.3d at 293.
42 Pa. Cons. Stat. Ann. § 5524(7).
7
Nor does she allege or argue that Appellees’
reinstallation of the church sign occurred within two years of
the complaint. And although the Amended Complaint states
that Appellees “repeatedly ratify their installation and
maintenance of the sign at Shickshinny Borough meetings[,]”
(App. 24), Tearpock-Martini does not explain the import of
this conclusory statement.
8
The reach of this doctrine is understandably narrow.
We have often applied it in employment discrimination cases,
where only in retrospect will a plaintiff recognize that
seemingly unconnected incidents were, in fact, part and
parcel of a larger discriminatory pattern. See Mandel v. M &
Q Packaging Corp., 706 F.3d 157, 165–67 (3d Cir. 2013)
(citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002)). Under such circumstances, equity demands that so
long as the most recent offensive utterance or adverse action
occurred within the limitations period, the entire scope of that
continuing violation may be considered. Id. We have
cautioned, however, that equitable relief from the statutory
limitations period is appropriate only where the alleged
violation is “‘occasioned by continual unlawful acts, not
continual ill effects from an original violation.’” Cowell, 263
F.3d at 293 (quoting Ocean Acres Ltd. v. Dare Cnty. Bd. of
Health, 707 F.2d 103, 106 (4th Cir. 1983)).8
The only cases lending credence to Tearpock-Martini’s
theory that a monument which contravenes the Establishment
Clause is a continuing act giving rise to a newly accrued right
on each day of its existence, as opposed to a continuing effect
of the original installation, come from the Seventh Circuit. In
Gonzales v. North Township of Lake County, 800 F. Supp.
676, 684 (N.D. Ind. 1992), the district court considered the
8
Were it not for this sensible limitation, the exception
might swallow the rule. A financial harm, physical trauma, or
injury to reputation, for instance, will often follow a plaintiff
long after the unlawful act itself. As a corollary, we have
held that a government official’s refusal to undo or correct
such harm is not an affirmative act for purposes of
establishing a continuing violation. Cowell, 263 F.3d at 293.
9
constitutionality of a monument installed in 1955 and
challenged 30 years later. The court, despite ultimately
finding no Establishment Clause violation, declined to apply
the statute of limitations, explaining that “as each day there is
a violation, each day [the plaintiff’s] cause of action accrues.”
Id. On appeal, the Seventh Circuit reversed, concluding,
without disturbing the district court’s limitations ruling, that
the monument did violate the Establishment Clause. See
Gonzales v. N. Twp. of Lake Cnty., 4 F.3d 1412 (7th Cir.
1993).
Years later, in Pitts v. City of Kankakee, 267 F.3d 592
(7th Cir. 2001), the Seventh Circuit revisited its Gonzales
opinion in dicta. The Pitts plaintiffs argued that the city had
violated their First Amendment rights by placing defamatory
signs on their property in retaliation for certain protected
speech. The panel rejected the plaintiffs’ argument that the
continuing-violation doctrine applied, in part by
distinguishing the plaintiffs’ claims from an Establishment
Clause violation:
The First Amendment’s command
that there be no establishment of
religion stands on a different
footing from a private individual’s
interest in avoiding defamation.
All citizens have an interest in
preventing government from
sponsoring one particular religion,
however worthy the tenets of that
faith may be. Indeed, it might not
be too much to say that an
important part of the reason why
the United States has been
10
fortunate enough to escape most
of the religious conflict that has
plagued other parts of the world is
that the Constitution itself
demands that the government
maintain a position of absolute
neutrality among religions.
Potential violations of this
principle may not be obvious,
however, to those who share a
common background. In a
predominantly Christian
community, it may take a
Buddhist, or a [Muslim], or a Jew,
or an atheist, to call to the
authorities’ attention a possible
violation of the Establishment
Clause. The rights of such
citizens do not expire simply
because a monument has been
comfortably unchallenged for
twenty years, or fifty years, or a
hundred years. Each day, as our
own opinion in Gonzales
implicitly recognized, brings a
new duty on the government's
part, and a corresponding new
right to seek vindication of the
constitutional right in question.
Id. at 596.
We take no issue with the Seventh Circuit’s emphatic
pronouncement that Establishment Clause claims ultimately
11
are not subject to dismissal under a state statute of limitations.
But nothing in the reasoning of either Gonzales or Pitts
suggests why the continuing-violation doctrine provides a
coherent basis for that conclusion. Many allegedly
unconstitutional state actions set in motion a lasting
consequence which, to an injured plaintiff, might continue to
invite vindication. But as we recognized in Cowell, to elide
the distinction between affirmative acts and effects would be
to extend indefinitely the date of accrual for all constitutional
claims predicated upon state takings, denial of business
permits, zoning decisions, and any other manner of state
action carrying long-term repercussions.
Instead we find ourselves in agreement with the simple
logic advanced by Appellees: (1) the last affirmative act taken
by Shickshinny was the physical installation of the sign itself,
which occurred outside the limitations period; (2) the
continued presence of the sign is merely an effect of that
action; (3) the continuing-violation doctrine does not apply.
Like the District Court, which concluded that Appellees
“ha[ve] committed no acts within the two years of the filing
of plaintiff’s complaint,” (App. 12), we too conclude that the
continuing-violation doctrine does not apply on these facts.
IV.
When an issue is properly before us, we are “not
limited to the particular legal theories advanced by the
parties, but rather retain[] the independent power to identify
and apply the proper construction of governing law.” Kamen
v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (citing
Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)); see also
Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d
408, 413 n.3 (3d Cir. 2012). Here, we find Pennsylvania’s
12
statute of limitations inapplicable to Tearpock-Martini’s
claim for a reason other than the one she offers.
As explained by the Supreme Court in Wilson, 471
U.S. at 267, and as we touched upon earlier, federal law
incorporates state law for purposes of certain interstitial
“rules of decision applicable to civil rights claims . . . .” Such
incorporation by reference, however, is not automatic, and
instead requires a three-step analysis:
First, courts are to look to the
laws of the United States “so far
as such laws are suitable to carry
[the civil and criminal civil rights
statutes] into effect.” [42 U.S.C.
§ 1988(a).9] If no suitable federal
9
In pertinent part, the statute reads:
The jurisdiction in civil and
criminal matters conferred on the
district courts . . . for the
protection of all persons in the
United States in their civil rights,
and for their vindication, shall be
exercised and enforced in
conformity with the laws of the
United States, so far as such laws
are suitable to carry the same into
effect; but in all cases where they
are not adapted to the object, or
are deficient in the provisions
necessary to furnish suitable
remedies and punish offenses
13
rule exists, courts undertake the
second step by considering
application of state “common law,
as modified and changed by the
constitution and statutes” of the
forum state. Ibid. A third step
asserts the predominance of the
federal interest: courts are to
apply state law only if it is not
“inconsistent with the
Constitution and laws of the
United States.” Ibid.
Burnett v. Grattan, 468 U.S. 42, 47–48 (1984). The first two
steps are not in dispute: because § 1983 lacks a limitations
period, we turn to Pennsylvania’s statutory rule. The third
step, upon which we now focus, compels us to apply that rule
against law, the common law, as
modified and changed by the
constitution and statutes of the
State wherein the court having
jurisdiction of such civil or
criminal cause is held, so far as
the same is not inconsistent with
the Constitution and laws of the
United States, shall be extended to
and govern the said courts in the
trial and disposition of the cause .
...
42 U.S.C. § 1988(a).
14
unless it would be “inconsistent with federal law or policy to
do so.” Wilson, 471 U.S. at 266–67.
We thus consider the significance of the federal rights
implicated by an Establishment Clause claim. Perhaps the
most readily apparent factor on this point is the Clause’s
standing in the first line of the Bill of Rights. See U.S. Const.
amend. I. The Supreme Court, too, despite a fractious debate
over the scope of the substantive rights conveyed, has
reiterated the importance of the Clause time and again: “It is
settled law that no government official in this Nation may
violate these fundamental constitutional rights regarding
matters of conscience.” Cnty. of Allegheny v. ACLU Greater
Pittsburgh Chapter, 492 U.S. 573, 590 (1989), abrogated on
other grounds by Town of Greece v. Galloway, 134 S. Ct.
1811 (2014); Town of Greece, 134 S. Ct. at 1825
(characterizing Establishment Clause rights as “elemental”).
Many constitutional rights which are traditionally
subject to state limitations periods, of course, are of debatably
equal or even greater significance. But what further
distinguishes Tearpock-Martini’s claim, and Establishment
Clause claims in general, is that the traditional rationales
justifying a limitations period—“to protect defendants against
stale or unduly delayed claims,” “facilitat[e] the
administration of claims,” and “promot[e] judicial
efficiency,” John R. Sand & Gravel Co. v. United States, 552
U.S. 130, 133 (2008)—simply have no persuasive force in
this context. Tearpock-Martini’s challenge is to a still-
existing monument that communicates anew an allegedly
unconstitutional endorsement of religion by the government
each time it is viewed. Strict application of the statutory
limitations period both serves no salutary purpose and
15
threatens to immunize indefinitely the presence of an
allegedly unconstitutional display.
Our analysis is bolstered by the fact that we are aware
of no opinion, aside from that issued by the District Court
below, to have held that an Establishment Clause violation
predicated on a still-existing display or practice was time-
barred. This cannot be for lack of opportunity: high-profile
challenges to the long-standing public display of religious
monuments have been routine in recent years. Although such
claims sometimes fail on the merits or for other procedural
reasons, none have been dismissed on limitations grounds.
See, e.g., Van Orden v. Perry, 545 U.S. 677 (2005) (display
of Ten Commandments challenged 40 years after
installation); Card v. City of Everett, 520 F.3d 1009 (9th Cir.
2008) (monument challenged more than 30 years after
installation); Weinbaum v. City of Las Cruces, 541 F.3d 1017
(10th Cir. 2008) (city seal challenged after over 40 years in
use); Freedom from Religion Found., Inc. v. City of
Marshfield, 203 F.3d 487 (7th Cir. 2000) (statue in Wisconsin
park challenged after 39 years on site); Harris v. City of Zion,
Lake Cnty., 927 F.2d 1401 (7th Cir. 1991) (city seal
challenged after 89 years in use); Friedman v. Bd. of Cnty.
Comm’rs, 781 F.2d 777 (10th Cir. 1985) (en banc) (county
seal challenged after 60 years in use). Cases involving
ongoing practices, too, have been brought long after the
initiation of the practice at issue without implicating a
limitations period. See, e.g., Town of Greece, 134 S. Ct. at
1816 (prayer at town meeting challenged after 9 years of
monthly occurrences). And our own jurisprudence, which
addresses the question only cursorily, implies that such claims
are not subject to dismissal under the statute of limitations.
See, e.g., Freethought Soc’y of Greater Phila. v. Chester
16
Cnty., 334 F.3d 247, 255 n.3 (3d Cir. 2003) (“[W]e do not
believe that the defendants have demonstrated that [the
plaintiff] waived her right to bring this action (or that the
statute of limitations has expired) because she noticed the
plaque in the 1960s but did not bring an action until 2001.”).10
In sum, the significance of the constitutional interests
at play, the minimal interests advanced by application of a
limitations period, and the long-standing apparent exemption
of Establishment Clause claims from such defenses convince
us that it would be “inconsistent with federal law or policy,”
Wilson, 471 U.S. at 266–67, to apply Pennsylvania’s
limitations period to Tearpock-Martini’s Establishment
Clause claim.11 Accordingly, we will vacate the dismissal of
Count Two of the Amended Complaint.
10
Although academic literature on the question
presented is all but nonexistent, Erwin Chemerinsky, a noted
constitutional scholar, agrees that the issue is not a matter of
tolling—instead, the better view is that “there is no statute of
limitations for Establishment Clause claims.” Erwin
Chemerinsky, Why Justice Breyer Was Wrong in Van Orden
v. Perry, 14 Wm. & Mary Bill Rts. J. 1, 14 (2005).
11
It should be plain from this analysis that our logic
and holding extend only to Establishment Clause claims
challenging a still-existing display. Although the question is
not before us, we expect that Establishment Clause claims
predicated on discrete incidents would remain subject to any
applicable state-law limitations period. See, e.g., Weinstein v.
U.S. Air Force, 468 F. Supp. 2d 1366, 1375 (D.N.M. 2006)
(dismissing Establishment Clause claim predicated on single
17
Appellees ask that in the alternative, we consider
whether Tearpock-Martini’s Establishment Clause claim fails
to state a claim upon which relief can be granted. Because
the District Court has not yet passed on that question, we
express no opinion on the matter and leave it for resolution
upon remand.
V.
Counts One and Three of the Amended Complaint
allege that Shickshinny violated the Equal Protection Clause
and the Free Speech Clause, respectively, when it prohibited
Tearpock-Martini from installing her own sign in protest of
the church sign. As noted above, Tearpock-Martini does not
allege that this incident occurred within two years of the
filing of her lawsuit. Nor does she specifically argue in her
briefing that the limitations period for these claims, too,
should be tolled by the continuing-violation doctrine or for
any other reason.
We agree with the District Court that these claims,
which also arise under § 1983, are barred by Pennsylvania’s
two-year statute of limitations. See, e.g., Bougher v. Univ. of
Pittsburgh, 882 F.2d 74, 78–79 (3d Cir. 1989) (affirming
dismissal of equal protection claims under Pennsylvania
statute of limitations); O’Connor v. City of Newark, 440 F.3d
125, 129 (3d Cir. 2006) (affirming dismissal of free speech
claim under Pennsylvania statute of limitations).
Accordingly, we will affirm the District Court’s order of
incident of unwelcome “proselytizing” under New Mexico’s
six-year limitations period).
18
August 19, 2013 insofar as it dismisses Counts One and Three
of the Amended Complaint.
VI.
For the foregoing reasons, we will affirm in part and
vacate in part the District Court’s ruling, and remand for
further proceedings consistent with this opinion.
19