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Levin v. City and County of San Francisco

United States District Court, N.D. California

May 30, 2017

DANIEL LEVIN, ET AL., Plaintiffs,



         More than two years ago, the Court held that an ordinance enacted by the City and County of San Francisco (“the City”) was unconstitutional. See generally Mem. & Order (dkt. 92). While appealing that decision, the City amended its ordinance, mooting the appeal. See USCA Mem. Dispo. (dkt. 127) at 2. The Ninth Circuit then remanded the case for this Court to decide, in the first instance, whether its judgment against the City should be vacated as a result.[1] Id. at 3.

         To make that decision, the Court must first determine whether the City's own voluntary action mooted this case. See Chemical Prod. & Distrib. Ass'n v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006). If the answer is yes, the Court may decide, in its discretion, whether the equities counsel in favor of vacatur. See id. at 878; see also Am. Games, Inc. v. Trade Products, Inc., 142 F.3d 1164, 1168 (9th Cir. 1998); Blair v. Shanahan, 38 F.3d 1514, 1521 (9th Cir. 1994). If the answer is no, the Court has little choice but to vacate the judgment. Helliker, 463 F.3d at 878; see also United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950).


         The “principal condition” on which vacatur turns is whether mootness was caused by happenstance or by voluntary action of the losing party. U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership, 513 U.S. 18, 24-25 (1994); accord Dilley v. Gunn, 64 F.3d 1365, 1370 (9th Cir. 1995). This is because a party “who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.” Bancorp, 513 U.S. at 25 (citation omitted). “The same is true when mootness results from unilateral action of the” prevailing party. Id. (citing Walling v. James V. Reuter, Co., Inc., 321 U.S. 671, 675 (1944)). Either way, the “established practice” is to vacate the judgment. Id. at 22-23 (quoting Munsingwear, 340 U.S. at 39). But when mootness results from voluntary action of the losing party, the adverse judgment “is not unreviewable, but simply unreviewed” by choice. Id. Vacatur, as a result, becomes a matter of discretion. See id. at 29.

         The script flips again when one branch of government moves to vacate an adverse judgment after voluntary action of another branch has mooted the case. See Helliker, 463 F.3d at 879. These cases tend to follow a pattern: the legislature causes mootness by amending or repealing a law that the executive had been sued for enforcing-and then the executive moves to vacate the adverse judgment. When that happens, courts treat the executive as being “in a position akin to a party who finds its case mooted on appeal by happenstance, rather than events within its control.” Nat'l Black Police Ass'n v. Dist. of Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997). The legislature, after all, “may act out of reasons totally independent of ending the lawsuit” or “because the lawsuit has convinced it that the existing law is flawed.” Id. at 352. So, without more, courts do not assume that the legislature acted simply to bail out the executive. Id.; accord Am. Library Ass'n v. Barr, 956 F.2d 1178, 1187 (D.C. Cir. 1992) (noting that Congress might have sought to “repair what may have been a constitutionally defective statute, which “represents responsible lawmaking, not manipulation of the judicial process”). Vacating the judgment thus becomes the “established practice” once more. See, e.g., Helliker, 463 F.3d at 878-79 (vacating judgment against state executive official after state legislature mooted case by passing statute preempting challenged law and accompanying state administrative regulations); Log Cabin Republicans v. United States, 658 F.3d 1162, 1165, 1168 (9th Cir. 2011) (per curiam) (vacating judgment against the federal government and federal executive officials after Congress mooted case by repealing “Don't Ask, Don't Tell”); Khodara Envtl., Inc. ex rel Eagle Envtl., L.P. v. Beckman et al., 237 F.3d 186, 192, 195 (3d Cir. 2001) (Alito, J.) (vacating judgment against state and federal executive officials after Congress mooted case by amending statute governing construction of landfills); Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 121 (4th Cir. 2000) (vacating judgment against state executive officials after state legislature mooted case by amending statute governing disposal of toxic waste).

         This “principle that legislation is attributed to the legislature alone is inherent in our separation of powers.”[2] Helliker, 463 F.3d at 789. Separation of powers, in turn, is inherent in our structure of federal and state governments. To state the obvious: the Constitution divides the federal government into three separate and independent branches. See U.S. Const. art. I, § 1 (“All legislative powers herein granted shall be vested in a Congress of the United States . . . .”); id. art. II, § 1 (“The executive power shall be vested in a President of the United States of America . . . .”); id. art. III, § 1 (“The judicial power of the United States, shall be vested in one Supreme Court, . . . .”). To state the less obvious: although the Constitution does not require the same of state governments, see Dreyer v. Illinois, 187 U.S. 71, 84 (1902), it presumes that they will at least have separate legislative and executive branches. The Domestic Violence Clause requires the federal government to protect states against internal unrest “on the Application of the [State] Legislature or of the [State] Executive (when the Legislature cannot be convened).” U.S. Const. art. IV, § 4; see also Luther v. Borden, 48 U.S. 1, 43 (1849) (noting that, to act on such an application, the President must first determine what “body of men” is the state's rightful legislature and what person is the state's rightful governor). No wonder, then, that this union of fifty states has fifty state legislatures and fifty state governors.

         The City maintains that separation-of-powers principles apply here in a “practical sense” because San Francisco's governmental structure places different powers in different hands. See Mot. at 11. The City elects a Board of Supervisors that may act only by ordinance and is expressly forbidden from interfering in administrative affairs.[3] See S.F. Charter §§ 2.101, 2.105, 2.114. Its mayor serves as a “chief executive officer” tasked with enforcing the law. Id. § 3.100.

         The City's system, however, is only one of countless ways in which lesser public bodies arrange their affairs. San Jose vests “[a]ll powers of the City” in a city council that, like San Francisco's Board of Supervisors, may only act “by ordinance.” S.J. Charter §§ 400, 600. But, rather than holding elections to select an executive officer, the city council appoints a city manager to handle day-to-day operations. Id. §§ 700-01. Portland, for its part, allows its city council to exercise its array of powers by whatever means, save delegating legislative functions. See Portland (Oregon) Charter § 2-104. Both San Jose and Portland also elect a mayor who, unlike in San Francisco, serves on the city council. See S.J. Charter §§ 500-01; Portland Charter §§ 2-102, 3-101. And these are just two contrasting examples-from major cities to boot.

         The City's position would thus force courts to examine town charters on a case-by-case basis to determine whether any particular lesser public body has sufficiently separated powers to warrant vacatur as a matter of course. That would be exceedingly difficult.[4] But even if wading into those murky waters had more practical appeal, there remains ample reason to doubt whether any lesser public body seeking vacatur stands in the same shoes as the federal government and the states, however it structures its affairs.

         The Supreme Court's cases on sovereign immunity and 42 U.S.C. section 1983 (“Section 1983”) provide something approaching The Standard Model of the governmental universe. And those cases suggest that, unlike the federal government and the states, the City is an ordinary litigant. The federal government enjoys sovereign immunity “save as it consents to be sued.” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 584 (1941)). States presumptively enjoy the same, Alden v. Maine, 527 U.S. 706, 713 (1999), and are not “persons” under Section 1983 because that term does not normally extend to sovereigns, Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989).[5] But for lesser public bodies like the City, the opposite is true. They do not enjoy sovereign immunity, Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977), and are indeed “persons” under Section 1983, Monell v. Dep't of Social Services of New York, 436 U.S. 658, 690 (1978).[6]

         Bottom line: the privilege that the City seeks seems reserved for sovereigns. At least two circuits, for that matter, have held that a judgment against a city need not be vacated when the city repeals a challenged law-and so held without regard to its governmental structure. See Houston Chronicle Pub. Co. v. City of League City, Tex., 488 F.3d 613, 619 (5th Cir. 2007) (solicitation ordinance); 19 Solid Waste Dep't Mech. v. City of Albuquerque, 76 F.3d 1142, 1144-45 (10th Cir. 1996) (drug testing policy). The Court likewise concludes that the City's voluntary action mooted this case. It will therefore proceed to the equities.[7]


         When weighing the equities, the Court must balance “the competing values of finality of judgments and right to relitigation of unreviewed disputes, ” as well as any “consequences and attendant hardships” that might result. Am. Games, 142 F.3d at 1168 (quoting Ringsb ...

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