Motion
for Temporary Restraining Order and Preliminary Injunction

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

ESPERANZA PEACE & JUSTICE CENTER, a non-profit corporation;
THE SAN ANTONIO LESBIAN & GAY MEDIA PROJECT, an unincorporated association,
and VAN, an unincorporated association,
Plaintiffs,

v.

CITY OF SAN ANTONIO and
HOWARD PEAK, in his official capacity as MAYOR OF THE CITY OF SAN ANTONIO,
Defendants.

CIVIL ACTION NUMBER SA98CA0696-OG

Plaintiff Esperanza Center's Motion for Temporary
Restraining Order and Preliminary Injunction

To the Honorable Judge:

Plaintiff Esperanza Center asks the court to grant a motion for a temporary restraining order and a preliminary injunction against Defendants, City of San Antonio and Mayor Howard Peak.

I. Introduction

1. In this lawsuit, plaintiffs are suing defendants, under 42 U.S.C. ß 1983, for viewpoint-based discrimination in public arts funding, in violation of the right to free speech under the First Amendment to the United States Constitution; for animus-based decisions in public arts funding, in violation of the right to equal protection of the laws under the Fourteenth Amendment of the United States Constitution; and, in a supplemental state law claim, for violation of the Texas Open Meetings Act, Texas Government Code, ßß 551.001 et seq.

2. Plaintiff Esperanza Center asks the Court to enter a temporary restraining order before September 17, 1998, enjoining defendants, and their agents and representatives, from retaliating against the Esperanza by eliminating all funding for the Esperanza Center from the City Budget for FY 1998-99. Subsequent to filing of this suit, the Cultural Arts Board amended the Proposed City Budget for FY 1998-99 to eliminate an allocation of $22,000 to the Esperanza that had previously been recommended by the Cultural Arts Board and the Department of Arts and Cultural Affairs. This amendment was made in retaliation for the Esperanza's lawsuit, in violation of the rights of petition and free expression under the First Amendment of the United States Constitution.⁽¹⁾

II. Factual Background

3. During January or February of 1998, the Department of Art and Cultural Affairs ("DACA") proposed and the City Council approved, Guidelines for Arts Funding Applications FY98-99. The DACA Guidelines specify three sets of criteria upon which operational grant decisions will be made: Artistic Excellence, Audience Development, and Administrative Capacity. A copy of relevant pages of these Guidelines is attached hereto as Exhibit A.

4. On March 31, 1998, the Esperanza Center submitted an operational grant application to the DACA, for support for Esperanza's general PazARTE programing, and a project grant application, for Visiones de Esperanza: Inner City Youth Media Project, which trains inner-city youth to tell their stories in print and film.

5. At some point during the 1998 application review process, DACA announced that operational grants allocated this year will last for three years, meaning that no new operational grant applications will be accepted until 2001. Thus, if an organization does not receive an operational grant this year, it will be ineligible until 2001.

6. On July 28 and 29, 1998, the CAB voted to recommend an operational grant to the Esperanza Center of $20,000 and a project grant of $2,000. See Affidavit of Graciela I. Sánchez, Executive Director of Esperanza, Exhibit B.

7. Thereafter, DACA accepted this recommendation and included it in the Proposed Budget for FY 1998-99, which was distributed to City Council and made available to the public on August 13, 1998. A copy of relevant pages of the Proposed City Budget FY 1998-99 are attached hereto as Exhibit C.

8. The Plaintiffs filed this lawsuit against the City of San Antonio and Mayor Howard Peak on August 4, 1998. Later that day, City Attorney Frank Garza appeared on Fox TV29 and stated:

"This Council, if the suit is filed, will have no choice but to really not fund them, because our current contracts say that if an entity sues the City, then you lose funding, because we're not going to fund someone to sue us. (Transcript Attached as Exhibit D)"

Upon information and belief, at that time no arts funding contract included a term regarding litigation against the City.

9. On August 10, Plaintiffs' attorney wrote to City Attorney Frank Garza pointing out that denial of the plaintiffs' current funding applications because of this lawsuit would constitute unconstitutional retaliation, alerting Mr. Garza to the harm caused by his statement, and asking Mr. Garza to rescind the statement. (Attached as Exhibit E) In a letter dated August 14, Mr. Garza declined this request. (Attached as Exhibit F)

10. On August 13, in a letter regarding the Plaintiff Media Project's current application for arts funding, DACA Director Eduardo Díaz wrote:

"With regards to comments attributed to the City Attorney regarding 1998 funding for outside agencies, staff is presently in the process of amending all City outside agency contracts and guidelines to address circumstances when agencies that are funded by the City file a claim or lawsuit against the City. The details of the proposed contract language have yet to be finalized. (Attached as Exhibit G)"

11. On August 15, the Los Angeles Times reported:

"Esperanza was again recommended for city funding by the advisory committee for the next fiscal year, which begins Oct. 1. But Frank Garza said that because of the litigation, Esperanza cannot even be considered for renewed funding, due to a city policy that forbids support of any organization pursuing litigation against the city. (Attached as Exhibit H)"

12. On August 27, the San Antonio Express News reported:

"Díaz noted that City Attorney Frank Garza has proposed a new city policy that forbids support of any organizations pursuing litigation against the city. (Attached as Exhibit I)"

13. On September 2, 1998, a special CAB meeting was called to consider the City Attorney's instructions regarding the Esperanza. Following a meeting with an Assistant City Attorney, members of CAB repeatedly questioned Graciela I. Sánchez, Executive Director of the Esperanza, about whether the Esperanza would withdraw its lawsuit against the City. After Ms. Sánchez informed the CAB that Esperanza would not drop its lawsuit, the CAB voted to amend its previous recommendation regarding the Esperanza Center and to provide no funding for the Esperanza Center. At that meeting, CAB members referred to a "City rule" against funding any organization that has an "adversarial relationship" to the City. See Affidavit of Graciela I. Sánchez, Exhibit B.

14. On September 3, 1998, DACA Director Eduardo Díaz informed the City Council that DACA had amended its proposed budget to remove funding for the Esperanza, based on the CAB vote, and that the CAB action was made pursuant to the recommendation of the City Attorney. See Affidavit of Graciela I. Sánchez, Exhibit B.

15. On September 3, 1998, Eduardo Díaz informed the City Council that CAB and DACA recommend reallocation of the $22,000 to be split between one organization and a DACA technical assistance program. See Affidavit of Graciela I. Sánchez, Exhibit B.

16. The City Council is scheduled to vote on the Proposed City Budget on Thursday, September 17, 1998.

17. The Esperanza Center will suffer irreparable injury if the City Council approves the retaliatory removal of funding for the Esperanza from the City Budget, as scheduled for September 17. The City Attorney has already made several public statements claiming that the City will refuse to fund and individual or organization that sues the City. Presumably the City Attorney and other City officials are now saying that funding will be denied to any individual or organization that has an "adversarial relationship" with the City. These statements have already caused serious concern to people and organizations throughout the City and have seriously chilled the free speech, access to the courts, and exercise of other First Amendment freedoms by any person or organization involved in work with the City. This injury will be compounded if the City Council is permitted to implement the threats of retaliation. See Exhibits D, G, H.

18. If the City Council implements the retaliation, DACA has indicated that it will treat Esperanza as ineligible for Texas Commission on the Arts funds and for operational grants from the City for three years. In addition, all three Plaintiffs will be ineligible for City Development Block Grants, City Cultural Tourism grants, or for any other City contract or grant. Finally, in addition to the loss of financial support, Esperanza will be effectively excluded from the many intangible benefits and assistance available to DACA grantees.

III. Legal Basis for Entry of a Temporary Restraining Order
and a Preliminary Injunction

The criteria for preliminary relief are clearly established. The movant must demonstrate: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any harm that may result from the injunction to the non-movant; and (4) that the injunction will not undermine the public interest. Virgie Lee Valley v. Rapides Parish School Board,118 F.3d 1047 (5th Cir. 1997). A Temporary Restraining Order may be entered even without notice to the adverse party if it appears, from facts shown by affidavit, that "immediate and irreparable injury loss, or damage will result before to the applicant before the adverse party or that party's attorney can be heard in opposition." Federal Rule of Civil Procedure 65 (b). As indicated in the attached certificate of Service, a copy of this motion has been hand-delivered to the City Attorney's office. Plaintiff Esperanza Center requests the Court for an expedited briefing schedule and entry of a Temporary Restraining Order before September 17th.⁽²⁾

The City and its agents openly amended the Proposed City Budget for FY 1998-99 to remove funding for the Esperanza Center because the Esperanza filed this lawsuit. There is no factual dispute over the grounds for preliminary injunctive relief.

The City's action in removing funding for the Esperanza is clearly unconstitutional. The Esperanza is not a public employee or in a position analogous to a public employee, and the filing of this lawsuit bear no rational connection to the arts programing for which the $22,000 allocation to the Esperanza was made. The law is clear that a government entity may not condition public funding on an applicant's refraining from filing suit against the government.

Moreover, even if the Esperanza is seen in a position analogous to a public employee, the law is clear that the City may not retaliate against the Esperanza for exercising its constitutional right to file a lawsuit or otherwise engage in public criticism of government action.

(a) Filing a Lawsuit is a Constitutionally Protected Activity

Filing a lawsuit is an exercise of the First Amendment right to petition the government for a redress of grievances.⁽³⁾ As the U.S. Supreme Court has observed, "the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances," Bill Johnson's Restaurants, Inc. v. National Labor Relations Board, 461 U.S. 731, 741 (1983) and "the right of petition is one of the freedoms protected by the Bill of Rights," California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). The Fifth Circuit has emphasized the connection between the First Amendment right to petition and other First Amendment rights of expression and assembly: "'The right to petition is cut from the same cloth as the other guarantees of that Amendment, and is an assurance of a particular freedom of expression.' . . . The Petition Clause' . . . 'was inspired by the same ideals of liberty and democracy that gave us the freedom to speak, publish, and assemble . . . These First Amendment rights are inseparable.'" Day v. South Park Independent School Dist., 768 F.2d 696, 701 (5th Cir. 1985) (quoting McDonald v. Smith, 472 U.S. 479, 482 (1985)).

Generally, the doctrine of unconstitutional retaliation provides that the government may not retaliate against a person (or organization) for exercising his or her constitutional rights. Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997). The doctrine of unconstitutional conditions provides that the government may not condition receipt of a benefit on the giving up of some constitutional right, even if the government could have denied the benefit for any number of other reasons. Perry v. Sindermann, 408 U.S. 593, 597 (1972). As Justice Stevens recently observed, these doctrines are two sides of the same idea:

The reason why . . . retaliation offends the Constitution is that it threatens to inhibit exercise of the protected right. . . . Retaliation is thus akin to an "unconstitutional condition" demanded for the receipt of a government-provided benefit. Crawford-El v. Britton, __ U.S. __, 118 S.Ct. 1584, 1592 (1998).

The Fifth Circuit explained the law regarding government retaliation and unconstitutional conditions in Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995). Jimmy Blackburn operated a towing and wrecker service in Harrison County. The City of Marshall contracted with towing services in two ways: a competitively bid contract for removal of vehicles from public property and a rotating on-call system for removal of cars that have been in accidents. In January 1992, Marshall solicited bids for the public property contract by putting two notices in the local newspaper. Blackburn did not see the notices and thus did not submit a bid. Upset, Blackburn telephoned the Chief of Police, Chuck Williams, and complained about the unfairness of the bidding procedure and the inadequacy of the public notice. Williams told Blackburn that his attitude in complaining was improper and later that day, Williams removed Blackburn's name from the rotation list for accident vehicles. Blackburn then brought an action under 42 U.S.C. ß 1983, alleging retaliation for exercise of his right to free speech, in violation of the First Amendment. The District Court erroneously held that Blackburn was not entitled to protection against retaliation, because he was not a public employee.

Judge Garwood, writing for the court, said the District Court's reasoning was "inverted" and explained the law of retaliation and unconstitutional conditions:

"Every citizen enjoys the First Amendment's protections against government interference with free speech, but the First Amendment rights of public employees are restricted by the nature of the employer-employee relationship."

It is well established that "even though a person has no 'right' to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests-especially, his interest in freedom of speech." Perry v. Sindermann, 408 U.S. 593, 597 (1972). Because of the special nature of the relationship between an employer and its employees, the Supreme Court has recognized that "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of speech of the citizenry in general." Pickering v. Board of Education, 391 U.S. 563, 568 (1968); see also Connick v. Myers, 461 U.S. 138 (1983).

A threshold question for a retaliation claim, then, is whether the person retaliated against was a private person or a public employee. If the person was a private individual or organization, then, under Perry v. Sindermann, 408 U.S. 593 (1972) and Blackburn v. Marshall, 42 F.3d 925 (1995), it is a violation of the First Amendment for a government entity to retaliate against that person's speech, including complaints and lawsuits.⁽⁴⁾ But if, on the other hand, the speaker or complainer was a public employee or equivalent, then the government may pursue its interest as an employer and may legitimately control some aspects of the employee's speech. Under Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 137 (1983), a government entity constitutionally may retaliate, including terminate, a pubic employee for speech that does not involve a matter of public concern.⁽⁵⁾ As to a public employee's speech or complaint that involves a matter of public concern, the government may retaliate only if its interest as an employer outweighs the employee's interest in the exercise of his or her right to free speech. See Connick v. Myers, 461 U.S. 137 (1983) (assistant district attorney distributed questionnaire that raised one matter of public concern but the Court held that the questionnaire was so disruptive of the workplace that the government employer could legitimately terminate the attorney).

Judge Garwood concluded that Jimmy Blackburn was not a public employee or the equivalent. First, he clearly was not in a standard employer-employee relationship with the City. Second, the relationship between Blackburn and the City was not analogous to an employee- employer relationship -- they did not share a worksite and their responsibilities are not interdependent. Third, there is no other reason why the underlying rationale of Connick should apply to Blackburn's situation - there is no reason why the City would have a greater interest in Blackburn's speech than in any other person's speech. 42 F.3d at 932-934.

Esperanza also is not a public employee. Clearly, there is no standard employee-employer relationship between the City of San Antonio and the Esperanza. Second, their relationship is not analogous to an employee-employer - they do not share worksites and their responsibilities and tasks are not intertwined. Finally, there is no reason for the City to have any greater interest in the Esperanza's speech than of any other member of the public.⁽⁶⁾

Under the doctrines of unconstitutional retaliation and unconstitutional conditions, then, the City has unconstitutionally retaliated against the Esperanza by removing the $22,000 allocated to the Esperanza in the Propose Budget. Similarly, by conditioning receipt of arts funding on waiver of the right to file suit, the defendants have imposed an unconstitutional condition.

In the last thirty years, the Supreme Court has clearly held that public employees do not lose their constitutional rights, particularly their First Amendment rights, merely because they are employed by the government. A government entity may not terminate or demote an employee in retaliation for the exercise of the employee's constitutional rights. However, the Court also has held that the government has legitimate interests as an employer and may constitutionally exercise authority as an employer. To mediate the conflict between these rules, the Court has held that employees' complaints and lawsuits are not constitutionally protected if they raise merely private concerns and the government may take action in response to it. If , on the other hand, a complaint raises a matter of public concern, then it is constitutionally protected and the government may not adversely respond, unless there it has some interest, as an employer, that outweighs the employee's free speech interests.

In this case, if the Esperanza Center is viewed as the equivalent of a public employee, the first question would be whether this litigation involves matters of public concern. Although courts have not clearly defined "public concern," the Fifth Circuit has held that a matter can be of public concern even if it also directly impacts the complainant. In Victor v. McElveen, __ F. 3d __ (5th Cir. August 6, 1998), for example, the Fifth Circuit held that a deputy's speech criticizing the sheriff for requiring only African-American deputies to attend a meeting raised a matter of public concern, even though it also involved the deputy's own working environment. The Fifth Circuit explained: "Victor's protest against racial discrimination was both inherently, and in content, form and context, a matter of public concern." Id. See also Copsey v. Swearingen, 36 F.3d 1336 (5th Cir.1994) (matter of public concern raised by plaintiff's complaint regarding termination of his licence).

The City Council's reduction in arts funding and the targeted defunding of the Esperanza in September 1997 was widely reported and discussed. See articles from 1997, attached hereto as Exhibit J. This year, a grassroots campaign regarding public funding for the arts involved the presentation of more than 5,000 postcards to the City Council and there has been extensive media coverage of the issue. Certainly there is broad public concern over the future of the City's art funding program.

Moreover, the complaint alleges improper government deference to public animus and viewpoint discrimination. Just as the complaint of racial discrimination in Victor v. McElveen "inherently" involved matters of public concern, so too the complaint of animus and viewpoint discrimination and the complaint of backroom decision-making in violation of the Texas Open Meetings Act are matters of public concern.

Thus, even if the Esperanza is viewed as a public employee, this lawsuit raises matters of public concern and thus is constitutionally protected. Under Pickering, Esperanza's rights may be balanced against the City's interests as a contractor, but the City has not asserted any such interest, and it is unlikely that such an interest exists, or that it would outweigh the public interest at stake here.

The many and serious harms suffered by the Esperanza because of the defendants' retaliation against this lawsuit cannot be remedied by an action at law. As the Fifth Circuit observed: "It is well settled that the loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury justifying the grant of a preliminary injunction." Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328 (5th Cir.1981) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). As alleged above and detailed in the attached affidavit of Graciela I. Sánchez, Executive Director of the Esperanza Center, the Esperanza Center will suffer irreparable harm if the City Council is permitted to implement retaliation against the Esperanza. The Esperanza will be disqualified from all contract and grant opportunities with the City, including those involving state and federal monies that are administered by the City. The retaliation against Esperanza has had a severely chilling effect throughout the arts community and the wider community of individuals and organizations that work with the City; this will be compounded if the City Council is permitted to endorse the retaliation. Finally, the Esperanza has already been marked as an out-cast and out-law; this too will be seriously aggravated if the City Council is permitted to affirm the retaliation.

The Esperanza has repeatedly requested the City and its agents to examine its treatment of the Esperanza and to consider alternative paths for reconciliation. The City has repeatedly rejected these efforts. At no time, however, has the City offered an explanation for its actions beyond the bold assertion that it has the discretion to act as it pleases with regard to arts funding. See Letter from Frank Garza, Exhibit F. For this reason, Plaintiff Esperanza Center is not aware of any harm that might result to the City or Mayor Peak from a temporary restraining order or preliminary injunction. At worst, the City would have to use some of the unallocated monies in the DACA Budget to restore the Esperanza funding. Presumably, the inconvenience to the City will be minimized if the Court enters an injunction prior to the City Council vote on September 17, rather than after the vote.

As discussed above, the retaliation threatened and publicized by the City Attorney has already had a chilling effect on the arts community and other social service communities in San Antonio. The atmosphere of fear and revenge generated by the City's retaliatory pursuit is harmful to all people in San Antonio. As the court recognized in Electronic Data Systems Corporation Iran v. The Social Security Organization of the Government of Iran, 508 F.Supp. 1350 (N.D.Tx. 1981), the public interest is served by adherence to Constitutional mandates. This insight is very significant in this case, in which the public generally is directly impacted by the unconstitutional retaliation of the defendants.

IV. Request for Temporary Restraining Order and Preliminary Injunction

For the reasons set forth above, the Plaintiff Esperanza Center requests the court to enter a Temporary Restraining Order, effective before September 17, 1998, enjoining the defendants from implementing the retaliatory removal of the funding allocation for the Esperanza Center previously approved by the CAB and DACA and included in the Proposed City Budget for FY 1998-99; enjoining the defendants, their agents or representatives from further unconstitutional retaliation against the Esperanza Center; and enjoining the defendants, their agents and representatives, including the City Attorney, from stating, publishing, or broadcasting threats of unconstitutional retaliation against the Esperanza.

The Plaintiff Esperanza Center also request the court to enter a Preliminary Injunction further enjoining the defendants as specified in the previous paragraph.

Respectfully Submitted,

Amy H. Kastely, Esq.
Carol Bertsch, Esq.
Mary Kenney, Esq.

----------------------

1. Plaintiffs may seek to amend the complaint, to include claims stemming from the current funding process, once the process is complete. This motion asks merely that the process be completed without the added distortion of retaliation.

2. Simultaneous with this motion, Plaintiff Esperanza Center has filed a motion for expedited briefing on the motion for a Temporary Restraining Order.

3. U.S. Const. Amend. I. The full text of the amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

4. The only exception is the rare occasion when the government's retaliatory action was "narrowly tailored to serve a compelling governmental interest." Board of County Commissioners v. Umbeher, 518 U.S. 668, 678 (1996). This exception is not implicated in the present case.

5. Of course there may be other, non-constitutional limitations on the government's ability to retaliate, such as contractual or statutory limitations.

6. In Board of County Commissioners v. Umbeher, 518 U.S. 668 (1996) Justice O'Connor, for the majority, concluded that Umbeher --, an independent contractor who had, for ten years, been the County's only trash hauler, under an automatically renewable, exclusive contract - was in a relationship with the County that was analogous to an employer-employee relationship. Justice O'Connor explicitly noted, however, that Umbeher's case involved "the termination of a pre-existing commercial relationship" and "we need not address the possibility of suits by bidders or applicants for new government contract who cannot rely on such a relationship." 518 U.S. at 685.