On The Case

Come for the sex toys. Stay for the newly created circuit split on mootness

(Reuters) - Will the U.S. Supreme Court get excited about sex toys?

That’s actually a possibility – sort of – after the en banc 11th U.S. Circuit Court of Appeals dismissed a challenge to a Georgia town’s law barring the sale of sex toys. But unfortunately for those hoping to witness the justices trying to maintain a PG rating in a case about sex toys, the issue that could attract the Supreme Court’s interest isn’t especially sexy at all. The 11th Circuit’s 7-5 decision in Flanigan’s Enterprises v. City of Sandy Springs, Georgia creates a split among the federal appellate courts on whether a claim for nominal damages can keep an otherwise mooted case alive.

The 11th Circuit majority, in an opinion by Judge Lanier Anderson, ruled that a demand for token damages – basically, a judicial acknowledgment that the plaintiff prevailed - cannot rescue a case in which the underlying claim is moot. But a dissenting opinion, written by Judge Charles Wilson and joined by four other 11th Circuit judges, said the majority’s decision is at odds with precedent from the 2nd, 4th, 5th, 6th, 8th, 9th and 10th Circuits, all of which have held, albeit in different sorts of cases, that nominal damages can keep a case alive. (I first saw mention of the 11th Circuit case on Howard Bashman’s indispensable How Appealing blog.) A lawyer for the losing 11th Circuit plaintiffs, Gerry Weber of Gerry Weber Law Offices, told me in an email that his clients are considering a petition for Supreme Court review to resolve the circuit split.

The 11th Circuit case involved Sandy Springs’ 2009 ordinance prohibiting the sale of sex toys. A few local businesses, including an adult bookstore doing business as Inserection, sued to challenge the law’s constitutionality. Their case was eventually joined by a Georgia woman with multiple sclerosis who said she purchases sex toys to “facilitate intimacy” with her husband and by a Georgia artist who uses sexual devices in his work. All of the plaintiffs sought a declaration that the sex toy sale ban was unconstitutional and an injunction against its enforcement. The individual plaintiffs also asked for nominal damages against Sandy Springs.

The litigation was dismissed by a federal trial judge in Rome, Georgia. A three-judge 11th Circuit panel affirmed the dismissal under binding precedent from 2004, when the 11th Circuit upheld an Alabama prohibition on the sale of sex toys. But the panel also suggested that the plaintiffs request an en banc rehearing so the 11th Circuit could reconsider whether its precedent is still good law. The plaintiffs accepted the invitation, and the appeals court granted en banc review last March.

A week later, Sandy Springs repealed its sex-toy sale ban. Its lawyers moved to dismiss the en banc appeal as moot. The 11th Circuit called for additional hearing and said it would consider mootness after oral argument. On the day of oral argument, June 6, Sandy Springs passed a resolution disavowing any intention to revive the sex-toy ban. It also acknowledged that the ban was inconsistent with zoning and licensing laws that already regulate businesses selling the devices and pledged to rely on those existing laws going forward.

The repeal and ensuing resolution undoubtedly mooted the plaintiffs’ request for a declaratory judgment and an injunction, the 11th Circuit concluded. “There is no reasonable expectation that the city will return to its previous ordinance,” the court said. “Accordingly, we are simply unable to conclude that the claims for declaratory and injunctive relief are properly before us.”

But did the plaintiffs’ unresolved demand for nominal damages give the 11th Circuit jurisdiction to opine on the sex toy ban’s constitutionality? That turned out to be a much tougher call for the en banc court. As the majority opinion pointed out, neither of the Supreme Court’s leading cases on nominal damages for constitutional violations squarely presented the issue of mootness since actual damages remained a prospect in both cases when the justices heard them. The 11th Circuit majority acknowledged that in 1997’s Arizonans for Official English v. Arizona, the Supreme Court noted the 9th Circuit’s holding that nominal damages can keep an otherwise moot case alive, but said the justices decided the Arizona case without reaching a conclusion on that point.

In the absence of definitive guidance, the 11th Circuit majority decided that the key mootness inquiry is akin to the test for constitutional standing: Does the case invoke an actual controversy capable of a remedy? Here, the majority said, there is no remaining controversy over the constitutionality of a law that has been definitively repealed. The plaintiffs won. The law has been erased. If the 11th Circuit were to poke its nose into the matter at this point, the majority said, it would effectively be issuing an advisory opinion – which federal courts aren’t supposed to do.

“Under the law as it now stands, the ban on sexual devices is nothing more than a novel hypothetical; an abstract proposition of law on which appellants urge us to issue an advisory opinion,” the majority said. “For more than two centuries, the federal courts have declined to accept such ill-advised invitations. We will not change course now.” Indeed, the opinion warned, if the court were to find otherwise, plaintiffs could manipulate their claims to circumvent mootness, forcing courts to issue just the sort of opinions Article III is intended to preclude.

But Judge Wilson’s dissent said the majority’s own footnotes cast doubt on its holding. The majority said its opinion does not moot cases in which plaintiffs have only claimed nominal damages because such damages are the only remedy for those plaintiffs – unlike the sex-toy plaintiffs, who prevailed in overturning the law. The dissent suggested that the majority’s distinction doesn’t make sense: “If the majority agrees that a case can result in the award of only nominal damages, then it must concede that nominal damages can save a claim from mootness,” the dissent said.

And besides, Judge Wilson added, whatever jurisdictional shenanigans might result from plaintiffs tacking on claims for nominal damages can’t be more egregious than Sandy Springs repealing its possibly unconstitutional law days after the 11th Circuit granted en banc review.

Civil rights litigation is supposed to secure social benefits that may not be reflected by the size of the monetary injury, the dissent said. That’s why nominal damages are available in civil rights cases – and why they are sufficient to keep the cases alive. “The most workable option,” Judge Wilson wrote, “is a bright line rule allowing nominal damages to save constitutional claims from mootness.”

Seems like the case has just about everything the Supreme Court could desire – and that’s not counting the X-rated stuff.