Zen Music Festivals v. Stewart , 72 F. App'x 168 ( 2003 )


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  •                                                         United States Court of Appeals
    Fifth Circuit
    F I L E D
    UNITED STATES COURT OF APPEALS
    August 18, 2003
    For the Fifth Circuit
    Charles R. Fulbruge III
    Clerk
    No. 02-11132
    ZEN MUSIC FESTIVALS, A TEXAS LIMITED LIABILITY COMPANY,
    Plaintiff-Appellee,
    VERSUS
    RAY STEWART,
    IN HIS OFFICIAL CAPACITY AS SHERIFF OF ELLIS COUNTY, TEXAS; and
    AL CORNELIUS, IN HIS OFFICIAL CAPACITY AS ELLIS COUNTY
    ADMINISTRATOR,
    Defendants,
    VERSUS
    JOHN CORNYN, ATTORNEY GENERAL OF THE STATE OF TEXAS,
    Intervenor-Appellant.
    Appeal from the United States District Court
    For the Northern District of Texas, Dallas Division
    (02-CV-1998)
    Before EMILIO M. GARZA, and DENNIS, Circuit Judges, and VANCE*,
    District Judge.
    *
    District Judge of the Eastern District of Louisiana,
    sitting by designation.
    1
    PER CURIAM:**
    Intervenor John Cornyn, Attorney General of Texas (“Texas
    Attorney General”), appeals from the district court’s September 19,
    2002 preliminary injunction enjoining defendants Ray Stewart and Al
    Cornelius,      the   sheriff   and   administrator   of   Ellis   County
    respectively, from enforcing the permit requirement of the Texas
    Mass Gathering Act, Tex. Health & Safety Code Ann §§ 751.001-
    751.013 (“TMGA”), against plaintiff, Zen Music Festivals, L.L.C.
    (“Zen”) with respect to a music concert that was promoted and held
    by Zen on September 21, 2002 on the Beaumont Ranch in Ellis County,
    Texas.    For the reasons stated below, we dismiss this appeal as
    moot.
    I
    Zen promotes and holds annual music festivals in Texas.           It
    intended to hold a music concert on September 21, 2002 on private
    property in Ellis County, Texas that it expected would attract over
    5,000 people who would remain at the location for more than five
    continuous hours.      The TMGA requires, inter alia, a permit for a
    “person” such as Zen to hold a “mass gathering,” which is defined
    as “a gathering that is held outside the limits of a municipality
    and that . . .is expected to attract more than 5,000 persons who
    will be at the meeting location for more than five continuous
    **
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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    hours.”     See TMGA §§ 751.002(2) (defining “person”); 751.003
    (describing permit requirement generally); 751.002(1) (defining
    “mass gathering”).
    Accordingly, on August 28, 2002, Zen applied for a permit to
    hold the music concert from defendant Judge Al Cornelius of Ellis
    County.     See id. § 751.004 (providing that the permit applicant
    must apply to the county judge of the county in which the “mass
    gathering” is to be held).    Judge Cornelius held a hearing and on
    September 9, 2002 denied the permit.
    On September 13, 2002, Zen filed suit against the defendants
    in the district court under 
    42 U.S.C. § 1983
    , claiming that the
    TMGA is facially invalid under the First Amendment and requesting
    a permanent injunction precluding defendants from enforcing the
    TMGA.     On September 16, 2002, Zen filed an emergency application
    for a preliminary injunction, asking the district court to enjoin
    the defendants from enforcing the TMGA against Zen in relation to
    the September 21, 2002 music concert.     On September 18, 2002, the
    Texas Attorney General was granted leave to intervene in this case
    pursuant to 
    28 U.S.C. § 2403
    (b).       On September 19, 2002, after a
    hearing, the district court issued a preliminary injunction that
    prevented defendants from enforcing the permitting requirements of
    the TMGA against Zen with respect to the September 21, 2002 music
    concert.    Zen promoted and held the music concert as scheduled on
    September 21, 2002. On October 4, 2002, the Texas Attorney General
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    appealed from the preliminary injunction judgment, and on October
    8, 2002, the district court stayed all further proceedings in the
    case pending appeal.
    II
    “[A] case is moot when the issues presented are no longer
    ‘live’ or the parties lack a legally cognizable interest in the
    outcome.”      County of Los Angeles v. Davis, 
    440 U.S. 625
    , 631 (1979)
    (internal quotation omitted).          “[T]he question is not whether the
    precise relief sought at the time an application for injunction was
    filed is still available.       The question is whether there can be any
    effective relief.”      Vieux Carre Property Owners v. Brown, 
    948 F.2d 1436
    , 1446 (5th Cir. 1991).          If there can be no effective relief,
    then any decision by the appellate court would be advisory.                  See
    City of Erie v. Pap’s A.M., 
    529 U.S. 277
    , 288 (2000).
    Courts have established an exception to the mootness doctrine
    for     “issues    capable     of    repetition,      yet   evading    review.”
    Specifically, “[a]lthough a case may be technically moot, a federal
    court    may    nevertheless    retain       jurisdiction   if   a    continuing
    controversy exists or if the challenged problem is likely to recur
    or is otherwise capable of repetition.”              Vieux Carre, 
    948 F.2d at 1447
    .      This    exception,       however,   “is   inapplicable     in   those
    situations in which the issues underlying the appeal are not moot
    in the case remaining before the district court.”                Marilyn T. v.
    Evans, 
    803 F.2d 1383
    , 1385 (5th Cir. 1986) (concluding that the
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    exception did not apply where the district court’s denial of a
    preliminary    injunction   was     not   a    final   decision   on   the
    constitutionality of the challenged action).
    In the specific context of a preliminary injunction, where
    “the terms of the injunction . . . have been fully and irrevocably
    carried out,” and where any underlying issues remain for a trial on
    the merits of the case, the appeal of the preliminary injunction
    should be dismissed as moot.      University of Texas v. Camenisch, 
    451 U.S. 390
    , 398 (1981).       It is improper to hear an appeal of a
    remaining issue at the preliminary injunction stage because of the
    significant differences between a preliminary injunction and a
    permanent injunction or other final disposition on the merits of
    the case.     See 
    id. at 394-95
    .    Specifically, “[t]he purpose of a
    preliminary injunction is merely to preserve the relative positions
    of the parties until a trial on the merits can be held.       Given this
    limited purpose, and given the haste that is often necessary if
    those positions are to be preserved, a preliminary injunction is
    customarily granted on the basis of procedures that are less formal
    and evidence that is less complete than in a trial on the merits.”
    
    Id. at 395
    .
    In this case, the Texas Attorney General is appealing a
    preliminary injunction that prohibited defendants from enforcing
    Texas’ TMGA permit requirements against Zen in relation to a music
    concert that has already happened.            Because “the terms of the
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    injunction have been fully and irrevocably carried out,” any
    remaining issues should be considered after the trial on the
    merits.   
    Id. at 398
    .   No exceptions exist here because “the issues
    underlying the appeal are not moot in the case remaining before the
    district court.”   Marilyn T., 
    803 F.2d at 1385
    .    Accordingly, we
    dismiss this appeal as moot and remand the case to the district
    court for proceedings consistent with this opinion.
    DISMISSED and REMANDED.
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