Chris Cabral v. City of Evansville

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2914
CHRIS CABRAL and NANCY TARSITANO,
Plaintiffs-Appellees,
v.
CITY OF EVANSVILLE, INDIANA,
Defendant,
APPEAL OF: WEST SIDE CHRISTIAN CHURCH,
Intervenor-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 13-CV-139 — Sarah Evans Barker, Judge.
____________________
ARGUED FEBRUARY 18, 2014 — DECIDED JUNE 25, 2014
____________________
Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.
WILLIAMS, Circuit Judge. Seeking a permit, the West Side
Christian Church (“West Side”) applied to the City of Ev-
ansville, Indiana, to set up its “Cross the River” display,
which consisted of thirty-one, six-feet tall decorated crosses
2 No. 13-2914
on four blocks of the City’s public Riverfront. After Evans-
ville approved the application, residents Chris Cabral and
Nancy Tarsitano filed suit against Evansville seeking an in-
junction to stop the display from being erected, claiming that
it violated their First Amendment rights. The district court
agreed and ordered the City permanently enjoined from
permitting the erection of West Side’s display on the River-
front. Here, the City does not appeal, but West Side, which
was an intervenor in the district court action, does. We need
not reach the merits of West Side’s arguments, however, be-
cause West Side does not have standing to bring the appeal.
We cannot redress any injury West Side might have suffered
because Evansville is not party to this appeal and could pro-
hibit the display’s erection regardless of any order we issue.
And, any First Amendment injury West Side might have suf-
fered from the injunction was not fairly traceable to, or
caused by, Evansville. Since West Side does not have stand-
ing, we dismiss the appeal.
I. BACKGROUND
On April 30, 2013, West Side submitted a “Right-Of-Way”
permit application to the Evansville City Engineer’s Office
seeking permission to erect thirty-one plastic crosses on the
Riverfront. The Riverfront is a public area located in Evans-
ville’s downtown overlooking the Ohio River and is approx-
imately a mile and a half in length, with a widened sidewalk.
Evansville has in the past approved public displays on the
Riverfront, including carousel horse, fish and butterfly
sculptures, among other artwork.
West Side’s permit originally sought to erect crosses that
were six feet tall, nearly four feet wide and decorated by
children attending Bible school with the words “Jesus Saves”
No. 13-2914 3
on them. The crosses were going to be placed on a four-block
stretch of public sidewalk.
Evansville’s legal counsel opined that the display could
not contain the language “Jesus Saves” without running
afoul of the City municipal code regarding “First Amend-
ment signs.” But he suggested that the crosses could be dis-
played without the writing if the City’s Board of Public
Works (the “Board”) approved the display, which it eventu-
ally did. The Board also required a disclaimer at either end
of the four blocks that would read: “The City of Evansville
does not endorse the display or its message. The display is
sponsored and funded by a private entity.” Though the pre-
cise location of the crosses was never determined, there were
three proposals in place, all of which planned to put the dis-
play on a four-block stretch of the public Riverfront between
August 4-18, 2013.
Before the crosses went up, Cabral and Tarsitano filed
their complaint against Evansville and a motion for a prelim-
inary injunction on June 25, 2013, challenging the display as
violating the Establishment Clause. West Side filed its mo-
tion to intervene on July 12, 2013, which the court granted on
July 18. The district court eventually entered an injunction,
holding that “the City’s approval of this display of crosses
constitutes an impermissible endorsement of religion that
violates the Establishment Clause of the First Amendment,”
and ordered that Evansville was permanently enjoined from
permitting the display’s erection.
The City did not appeal the decision. West Side, as inter-
venor, filed a timely appeal.
4 No. 13-2914
II. ANALYSIS
West Side argues that the display does not violate the Es-
tablishment Clause and that we should reverse the district
court and vacate the permanent injunction. West Side also
argues that the injunction violates its First Amendment
rights. However, we need not reach these issues because we
hold that West Side lacks standing to pursue this appeal.
Standing ensures that the parties have a vested interest in
the case and guarantees that the court only adjudicates “cas-
es and controversies.” Hollingsworth v. Perry, 133 S. Ct. 2652,
2661 (2013); see also Lujan v. Defenders of Wildlife, 504 U.S. 555,
559–60 (1992). To satisfy Article III’s standing requirements,
a litigant must show that (1) it has suffered an actual or im-
minent concrete and particularized “injury in fact”; (2) the
injury is fairly traceable to the challenged action of the de-
fendant; and (3) it is likely, as opposed to merely specula-
tive, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180–81 (2000). The elements of standing must
be satisfied not only at the outset of trial, but also on appeal.
See Hollingsworth, 133 S. Ct. at 2661. Since Evansville has de-
cided not to appeal the district court’s decision, it is now in-
cumbent on West Side to demonstrate that it has standing to
pursue this appeal.
West Side argues that it has standing for two different
reasons. First, it contends that it has standing to challenge
the lower court’s decision that the display was unconstitu-
tional. Second, it argues it has standing because the injunc-
No. 13-2914 5
tion violates West Side’s First Amendment rights. Both ar-
guments fail, but for different reasons.
As to the first argument, the lower court’s holding that
the display was a violation of Cabral’s and Tarsitano’s First
Amendment rights and its entry of an injunction does not
injure West Side in any way that we can redress. Redressa-
bility “examines the causal connection between the alleged
injury and the judicial relief requested” with the “focus on
the requested relief.” Allen v. Wright, 468 U.S. 737, 753 n.19
(1984). “[T]he relevant inquiry is whether … the plaintiff has
shown an injury to himself that is likely to be redressed by a
favorable decision.” Simon v. E. Ky. Welfare Rights Org., 426
U.S. 26, 38 (1976).
Here, the relief West Side requests is that we reverse the
district court’s decision and vacate the injunction that pro-
hibits Evansville from permitting the display to be erected.
Notably, the injunction does not compel West Side to act in
any particular way or refrain from acting in any particular
manner; instead, the injunction specifically runs against Ev-
ansville, and only Evansville. See Cabral v. City of Evansville,
958 F. Supp. 2d 1018, 1029 (S.D. Ind. 2013) (“the City is here-
by PERMANENTLY ENJOINED from permitting the erec-
tion of the display as described and referred to herein as
‘Cross the River’ within the Riverfront area” (emphasis add-
ed)). Stated another way, the only party that is “expressly
bound” by the injunction is Evansville, whose legal rights
and actions are explicitly restricted by the injunction.
Transamerica Ins. Co. v. South, 125 F.3d 392, 397 (7th Cir.
1997). Conversely, any injury West Side suffered as a result
of the injunction is “derivative” since “[n]othing in the in-
junction[] imposes any disabilit[y]” upon West Side. Kendall-
6 No. 13-2914
Jackson Winery, Ltd. v. Branson, 212 F.3d 995, 998 (7th Cir.
2000). In other words, if we vacated the injunction, it would
directly affect how Evansville can act going forward, e.g., it
could allow the display to be erected. However, West Side’s
status would only change if a third party so allowed, e.g., if
Evansville allowed West Side to erect the display.
That fact dooms West Side’s redressability argument be-
cause if were we to vacate the injunction, we could only
speculate as to whether West Side’s injury would be re-
dressed, and such speculation is not enough to support
standing. See Laidlaw, 528 U.S. at 180–81 (noting standing re-
quires that “it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision”). If
we vacated the injunction, Evansville might grant West
Side’s permit, as it did in 2013. On the other hand, Evansville
might also deny the permit for any number of reasons. Both
courses of action would be consistent with any vacating or-
der, and we have no way of knowing which way Evansville
would proceed. Such speculation is not enough to turn this
into a case and controversy with a redressable injury. See
ASARCO, Inc. v. Kadish, 490 U.S. 605, 615 (1989) (holding
party did not have standing, in part, because “[w]hether the
association’s claims of economic injury would be redressed
by a favorable decision in this case depends on the unfet-
tered choices made by independent actors not before the
courts and whose exercise of broad and legitimate discretion
the courts cannot presume either to control or to predict”);
Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1444
(2011) (finding no standing where “[e]ach of the inferential
steps to show causation and redressability depends on
premises as to which there remains considerable doubt”).
West Side has not presented us with any evidence that Ev-
No. 13-2914 7
ansville’s decision on whether to grant the permit going
forward has “been or will be made in such manner as to
produce causation and permit redressability of injury.”
Lujan, 504 U.S. at 562. West Side might argue that Evans-
ville’s grant of the permit in 2013 allows us to infer that Ev-
ansville would permit the erection now, but West Side has
not presented any proof along those lines.
That brings us to West Side’s second redressability prob-
lem, namely that Evansville is not a party before us. Evans-
ville is the only party that is expressly bound by the injunc-
tion and so any decision we made on the merits of this case
would affect only its legal rights. Yet it is basic appellate
procedure that “a judgment will not be altered on appeal in
favor of a party who did not appeal [even if] the interests of
the party not appealing are aligned with those of the appel-
lant.” Albedyll v. Wis. Porcelain Co. Revised Ret. Plan, 947 F.2d
246, 252 (7th Cir. 1991) (quoting 9 J. Moore & B. Ward,
Moore’s Federal Practice ¶ 204.11[4] (1991)). As we stated in
Kendall-Jackson, “[t]he critical question is this: when a district
judge enters an order creating obligations only for Defend-
ant A, may the court of appeals alter the judgment on appeal
by Defendant B when obligations imposed on A indirectly
affect B?” 212 F.3d at 998. We found we could not alter the
judgment in that case. Id. We cannot here, either. Besides the
obvious concerns of deciding a party’s legal rights without
hearing its arguments and imposing a judgment on a party
that has consciously decided not to appeal a decision, there
are practical problems with adjudicating rights of non-
appealing parties. The Fourth Circuit recently explained
that:
8 No. 13-2914
[O]ffering a non-appealing party the automatic bene-
fit of any appellate decision won without its participa-
tion would produce an intractable free-rider problem,
not to mention endless follow-on litigation by non-
appealing parties to determine whether their interests
are closely enough aligned with those of the appeal-
ing party to warrant the benefit of the appellate
judgment.
K.C. v. Shipman, 716 F.3d 107, 117 (4th Cir. 2013).
West Side tries to save its case by arguing that if it does
not have standing to challenge the merits of the lower
court’s decision to grant the injunction (which, as we dis-
cussed above, it does not), then it has standing since the in-
junction violates West Side’s First Amendment rights and
leaves it in the same position as if it had applied for a permit
and been denied. This argument fails and also demonstrates
why West Side does not have standing at this point to chal-
lenge the constitutionality of the injunction. The simple fact
is that West Side is not in the same position as if it had
sought a permit from Evansville and been denied. Had it
proceeded in that manner, we expect that Evansville would
have denied the permit because of the injunction. West Side
could have then filed a suit under 42 U.S.C. § 1983 alleging
Evansville’s actions violated its First Amendment rights; at
that point, West Side would have suffered an injury, fairly
traceable to the actions of a governmental actor that we
could redress. In that case, West Side would have standing.
Here, there is no injury traceable to Evansville’s actions be-
cause Evansville has not caused West Side any injury—it has
not denied West Side a permit nor has it prevented West
Side from erecting the display. West Side cannot therefore
No. 13-2914 9
show it has suffered an injury that is traceable to, or caused
by, Evansville’s actions. See, e.g., Love Church v. Evanston, 896
F.2d 1082, 1086 (7th Cir. 1990) (holding that because Love
Church never applied for, or was denied, a permit, it did not
have standing to challenge ordinance); see also Roe v. Elyea,
631 F.3d 843, 864 (7th Cir. 2011) (“A successful § 1983 plain-
tiff therefore must establish not only that a state actor violat-
ed his constitutional rights, but also that the violation caused
the plaintiff injury or damages” (emphasis in original)).
West Side’s citation to Kendall-Jackson does not provide
support for its standing argument. In Kendall-Jackson, various
liquor suppliers brought a 42 U.S.C. § 1983 action against the
Illinois Liquor Control Commission, asking the district court
to declare that a certain act the Commission enforced violat-
ed the Contracts Clause of the United States Constitution.
Kendall-Jackson, 212 F.3d at 996. The district court ruled in
favor of the suppliers and issued an injunction prohibiting
the Commission from enforcing the act. Id. Some liquor dis-
tributors, on whose behalf the Commission had previously
enforced the act, appealed the decision. Id. at 997. As is the
case here, the governmental entity that was the only party
bound by the injunction, the Commission, did not appeal the
decision, but the private parties that suffered a derivative
injury did appeal. Id. at 996–97 (“[T]he district court’s injunc-
tion runs against the Commission exclusively.”). Even
though the distributors sought to have the injunction vacat-
ed, we held that the distributors did not have standing to
bring suit because “the injunction injures them, but how can
their appeal redress that injury given that the injunction will
continue to bind the Commission?” Id. at 998. In dicta, we
speculated that “it is possible to see how such a question
may be answered affirmatively” in cases when “a statute
10 No. 13-2914
creates a private right of action … [that] may be enforced by
private parties by suits against the agencies … or under 42
U.S.C. § 1983 to the extent the defendant is a state actor.” Id.
at 998. West Side argues this dictum provides it with stand-
ing. But a key element of that speculation is that the private
party could bring a suit against the agency or governmental
actor; here, West Side could not yet bring a § 1983 suit
against Evansville because, as discussed above, Evansville
has not caused West Side any injury.
West Side’s counsel represented during oral argument
that it would apply for a permit in the upcoming year. Noth-
ing in the district court’s injunction prevents it from seeking
that permit. If Evansville denies the request and West Side
chooses to file a suit under 42 U.S. § 1983 and challenge that
denial, it would have standing to proceed (though that says
nothing about the merits of its claims). Until then, this ap-
peal must be dismissed for lack of standing.
We caution, however, that West Side’s road ahead might
not necessarily get any easier if it ever attains standing to
challenge the injunction. We question whether a reasonable
observer would be put on notice that the “Cross the River”
display is strictly private speech given the sheer magnitude
of a display that takes up four blocks and has two signs
alerting citizens that it is a private display. See Milwaukee
Deputy Sheriffs’ Ass’n v. Clarke, 588 F.3d 523, 527 (7th Cir.
2009) (holding that whether the government violates the Es-
tablishment Clause must be determined from the vantage of
the “objective ‘reasonable person’ … [who] is presumed to
be ‘informed … [and] familiar with the history of the gov-
ernment practice at issue’” (quoting Vasquez v. L.A. County,
No. 13-2914 11
487 F.3d 1246, 1256 (9th Cir. 2007)). However, because that
issue is not before us, we need not resolve it at this point.
III. CONCLUSION
For the foregoing reasons, we DISMISS the appeal for lack
of standing.