United States District Court, N.D. California
ORDER DENYING MOTION FOR RELIEF FROM
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE
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. Id. at 3.
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).
“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
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).
“principle that legislation is attributed to the
legislature alone is inherent in our separation of
powers.” 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
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. 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.
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.
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. 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.
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). 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,
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
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