Basim SABRI; Marty Schulenberg; Mohamed Cali; Jay Webb; Zachary Metoyer, Plaintiffs-Appellants, v. WHITTIER ALLIANCE, a Minnesota not-for-profit corporation; City of Minneapolis, a municipal corporation, Defendants-Appellees.
No. 15-3075
United States Court of Appeals, Eighth Circuit.
Submitted: June 16, 2016. Filed: August 19, 2016.
Rehearing and Rehearing En Banc Denied September 27, 2016
833 F.3d 995
MURPHY, Circuit Judge.
Counsel who presented argument on behalf of the appellee City of Minneapolis and appeared on the brief was Kristin R. Sarff, of Minneapolis, MN.
Counsel who presented argument on behalf of the appellee Whittier Alliance was Matthew P. Webster, of Minneapolis, MN. The following attorney also appeared on the appellee brief; Samuel W. Diehl, of Minneapolis, MN.
Before MURPHY, BRIGHT, and SHEPHERD, Circuit Judges.
MURPHY, Circuit Judge.
Five members of Whittier Alliance, a private neighborhood organization, brought this action under
I.
The Whittier Alliance is a private nonprofit organization in the Whittier neighborhood in Minneapolis. The organization holds community meetings, hosts events and activities, and presents forums and seminars intended to educate the neighborhood about civic engagement. The organization receives funds from private grants, donations, and the city of Minneapolis through the Community Participation Program (CPP). To receive CPP funding, a neighborhood organization must be incorporated, have bylaws and an elected board of directors, and “[e]nsure that membership in the organization is open to all residents.” If an organization‘s bylaws do not comply with the CPP guidelines, the city may recommend that the organization revise its bylaws and may withdraw CPP funding.
In 2014, Basim Sabri, Marty Schulenberg, Mohamed Cali, Jay Webb, and Zachary Metoyer (applicants) submitted applications to serve on the Alliance board. The applicants were members of Whittier Alliance and in past years had voiced their opposition to what they considered to be racist policies of the board. The executive director of the Alliance rejected the applications of Sabri, Schulenberg, Cali, and Webb on the ground that they had not had a documented history of engagement with the organization.
Appellants filed a grievance with the board, claiming that it had implemented policies deliberately designed to exclude racial minorities from leadership positions and that it lacked authority to reject their applications based on qualifications not contained in the existing bylaws. The board denied the grievance, and appellants sought review through the CPP grievance
On January 12, 2015 the membership of the Whittier Alliance voted to approve amended bylaws which included a new requirement for board candidates to show ongoing participation with the organization and attendance at meetings during the current year. The Alliance also approved an antidefamation bylaw requiring that board candidates must “not have committed an act of malice or defamation against the Whittier Alliance or any member of the Board of Directors or [have] otherwise disrupte[d] the aims and purposes of the corporation.”
Appellants did not submit applications for the board election held on March 26, 2015. They claim that their decision not to apply was based on the discriminatory nature of the antidefamation bylaw which they argue was intended to exclude them from running for board positions because of their critical speech about the incumbent board. To challenge the new bylaw, appellants filed this
II.
We review de novo a district court‘s grant of a motion to dismiss, “accepting as true all factual allegations in the complaint and drawing all reasonable inferences in favor of the nonmoving party.” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (internal quotation marks omitted).
The initial question is whether appellants have standing to raise their First Amendment claims. For standing a plaintiff must show that “he or she has suffered an ‘injury in fact’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.‘” Constitution Party of South Dakota v. Nelson, 639 F.3d 417, 420 (8th Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). In addition, a plaintiff must show that such injury is “fairly traceable” to the challenged conduct and that it is “likely [to] be redressed by a favorable decision.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir. 2009) (quoting Lujan, 504 U.S. at 560-61). A plaintiff‘s burden to establish standing depends on the stage of litigation, and at the motion to dismiss stage, “we presum[e] that general allegations embrace those specific facts that are necessary to support the [plaintiff‘s] claim.” Wieland v. U.S. Dep‘t of Health and Human Serv., 793 F.3d 949, 954 (8th Cir. 2015) (quoting Lujan, 504 U.S. at 561).
Appellants argue that the Alliance‘s antidefamation bylaw is unconstitutionally overbroad because it gives the board unfettered discretion to disqualify any board candidate it determines has committed an act of malice or defamation or otherwise disrupted the aims and purposes of the organization. “A plaintiff who has established constitutional injury under a provi
Here, the antidefamation bylaw restricts appellants’ ability as members of the Alliance to vote for the board candidate of their choice. We held in McLain v. Meier that the appellant had standing “in his capacity as a voter” to challenge the constitutionality of North Dakota‘s ballot access laws. See 851 F.2d 1045, 1048 (8th Cir. 1988). In that case, we concluded that the plaintiff had suffered “injury as a voter” because “his ability to vote for the candidate of his choice” had been restricted by the ballot access laws. See id.; see also Miller v. Moore, 169 F.3d 1119, 1123 (8th Cir. 1999) (plaintiffs had standing as voters to challenge state ballot access law because it would “diminish[] the likelihood that . . . their choice [would] prevail“). While the plaintiff had attempted to run for office, the state laws had prevented him from appearing on the ballot, and thus he was unable to vote for himself. See McLain, 851 F.2d at 1048.
Similarly in this case, the antidefamation bylaw prevents appellants from voting for themselves or any other candidates who might be considered malicious critics by the board. Although the primary impact of the bylaws may be on the board candidates, “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” Bullock v. Carter, 405 U.S. 134, 143 (1972). Although appellants do not directly allege voter standing in their complaint, we may look to matters outside the pleadings to determine whether standing exists. See Osborn v. United States, 918 F.2d 724, 728 n.4 (8th Cir. 1990). Here, appellants allege that they are “members” of Whittier Alliance, see Compl. ¶ 2, and the bylaws permit members to vote in Alliance elections, see Whittier Alliance Bylaws, Art. III, Sec. 3. Drawing all reasonable inferences in favor of appellants, we conclude that appellants have suffered sufficient injury as voting members of the Whittier Alliance. See Topchian, 760 F.3d at 848; Wieland, 793 F.3d at 954.
Appellants have also satisfied the other two required elements to establish standing. Their asserted injury may be traced to the objected bylaw and could be redressed by the relief they seek. See Braden, 588 F.3d at 591. Since they have standing to raise an as applied challenge to the antidefamation bylaw, they may also challenge its overbreadth in a facial challenge. See CAMP Legal Defense Fund, 451 F.3d at 1271. Nevertheless, the Whittier Alliance contends that appellants failed to exhaust their administrative remedies. Appellants concede they did not file a grievance with the city regarding the 2015 bylaws, annual meeting, or election, but they point out that a party generally need not have exhausted state remedies before bringing a
III.
To establish a
Appellants claim that the city was responsible for the deprivation of their rights because it commanded and encouraged the Alliance by “exercis[ing] coercive power” or overtly or covertly “significan[tly] encourag[ing]” it to act unconstitutionally. See id. Appellants argue that the city encouraged the adoption of the 2015 discriminatory bylaw by adopting a grievance procedure and requiring neighborhood organizations to have democratic processes and elections as a “precondition” for the receipt of public funds. Mere regulation does not convert a private organization‘s actions into state action, however, “even if [the regulation is] extensive and detailed.” See Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982) (internal quotation marks omitted). Furthermore, the fact that the city required Whittier Alliance to have open and democratic processes does not show that the city encouraged the Alliance to discriminate. Cf. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-53 (1970).
Appellants also argue that the city used its coercive power to compel Whittier Alliance to adopt the antidefamation bylaw by requiring it to clarify its bylaws after appellants filed their 2014 grievance. We conclude that the recommendation to amend the bylaws was not coercive, however, because the city did not and could not mandate the passage of any particular bylaw. It could at most withhold funds if it perceived a conflict between the bylaws and the CPP guidelines. See Chavez Aff. ¶ 12, March 31, 2015; Sarff Aff., March 31, 2015, Ex. 1, The 2014–2016 Community Participation Program Guidelines, I(B) ¶ 1 & IV(A) ¶ 4. The receipt of public funds did not convert the private actions by the Whittier Alliance into state action. See Rendell-Baker, 457 U.S. at 840.
Finally, appellants contend that the city used its coercive power to assign its own employee Michelle Chavez to participate in rewriting the Alliance bylaws. Chavez reviewed the proposed bylaws for the purpose of identifying any conflict between them and the CPP guidelines, but she did not propose any amendments to them. Her review fell well below any threshold showing that the city had “significan[tly] encourage[d]” the Alliance to pass a particular bylaw. See Blum, 457 U.S. at 1004.
IV.
We conclude that the adoption of the 2015 bylaws by the Whittier Alliance did not amount to state action. We therefore affirm the district court‘s judgment.
SHEPHERD, Circuit Judge, concurring in part and dissenting in part.
I concur with the court‘s decision to affirm the district court‘s dismissal of the Appellants’ complaint, however I would base the dismissal on the Appellants’ lack of standing. Thus, I dissent from section II of the majority‘s opinion.
Appellants do not have standing in this matter because they failed to apply to run for Board of Director positions after the
Furthermore, Appellants do not assert standing on the basis of their capacity as voters in their complaint, in response to the motion to dismiss, or in their briefing on appeal. See Bernbeck, 829 F.3d at 650 (rejecting voter status as a basis for standing where the court could find “[n]owhere in the complaint nor in the record . . . any averment or evidence that [the plaintiff] is registered to vote.“).
Accordingly, finding that Appellants do not have standing, I agree with the district court that the complaint should be dismissed on that basis, and I would not reach the merits of the
DIANA E. MURPHY
UNITED STATES CIRCUIT JUDGE