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SCOTTSDALE CITY ATTORNEY’S OFFICE

3939 North Drinkwater Boulevard

Scottsdale, Arizona 85251

Telephone (480) 312-2405

Joshua M. Crum (SBN 027302)

legal@scottsdaleaz.gov

Attorneys for City Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

The Satanic Temple and Michelle Shortt,

Plaintiffs,

vs.

City of Scottsdale, Arizona, by its City Council, 

consisting of the Mayor and council members, 

WJ Jim Layne, Suzanne Klapp, Virginia Korte, 

Kathy Littlefield, Guy Phillips, David Smith,

Defendants.

Case No. 18-cv-00621-DGC

DEFENDANTS’ MOTION TO 

DISMISS

Defendants City of Scottsdale, W.J. “Jim” Lane (erroneously sued as WJ Jim Layne), 

Suzanne Klapp, Virginia Korte, Kathy Littlefield, Guy Phillips, and David Smith move to 

dismiss Plaintiffs’ Complaint for failure to state a claim. This motion is supported by the 

following memorandum.1

 

1 As required by LRCiv. 12.1, undersigned counsel certifies that he notified Plaintiffs’ 

counsel in writing of the grounds of this motion prior to its filing, and the parties were unable to 

agree that the pleading was curable in any part by a permissible amendment. 

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MEMORANDUM IN SUPPORT

Brief Statement of Facts

This case arises out of the Satanic Temple’s ongoing campaign to attempt to deliver 

invocations at local legislative meetings across the country. In February 2016, after the Satanic 

Temple’s request to pray in a Phoenix City Council meeting led Phoenix to discontinue its 

invocations, a representative from a Tucson-based chapter of the Satanic Temple first contacted 

Scottsdale with a similar request.

2 The request was routed to the administrative worker 

responsible for scheduling invocations, the Management Assistant to the Mayor and City 

Council.3 The Management Assistant scheduled the Satanic Temple to deliver an invocation for 

April 5 and later rescheduled the date to July 6 at the Satanic Temple’s request after the person 

selected to give the invocation, Plaintiff Michelle Shortt, was unavailable on the earlier date.

4 In 

May, after consultation with the City Manager, the Management Assistant contacted the Satanic 

Temple to notify the group that it would not be giving the scheduled invocation because the 

City Manager had “decided that the City would not deviate from its longstanding practice of 

having the invocation given only by representatives from institutions that have a substantial 

connection to the Scottsdale community.”5

In February 2018, the Satanic Temple filed this suit, alleging four causes of action. First, 

that the City’s practice of allowing “regular official sectarian invocations” and denying the 

Satanic Temple the right to give its own invocation violated the Establishment Clause of the 

 

2 See Compl. ¶¶ 21, Ex. 1, 9. 

3 Compl. ¶¶ 22, 24.

4 Compl. ¶¶ 26-28.

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U.S. Constitution. Second, that the City violated the Equal Protection Clause of the U.S. 

Constitution by preferring certain religious denominations and discriminating against the 

Satanic Temple. Third, that the denial of the Satanic Temple’s request to give the invocation 

violated Article 20, section 1 of the Arizona Constitution, the Toleration of Religious Sentiment 

Clause. And fourth, that the City’s actions constituted violations of 42 U.S.C. § 1983.

Argument

To survive a motion to dismiss, a complaint must include “a short and plain statement of 

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint 

must also contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). A plaintiff cannot rest on “labels and conclusions” or a 

“formulaic recitation of a cause of action’s elements”; the complaint must contain factual 

allegations sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. 

at 555. While a court must generally accept as true all allegations contained in a complaint, that 

tenet does not apply to mere conclusory statements. Id. at 678-79. Legal conclusions couched as 

factual allegations are not given a presumption of truthfulness, and “conclusory allegations of 

law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. 

FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

For the reasons that follow, the Plaintiffs’ Complaint, which consists of conclusory 

allegations and invalid claims, falls short of the pleading standards and fails to state valid 

 

5 Compl. ¶ 32, Ex. 7.

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claims against the Defendants. And because its flaws go to the heart of Plaintiffs’ claims, 

beyond what could be fixed by amendment, Plaintiffs’ Complaint should be dismissed in its 

entirety with prejudice.

I. Plaintiffs have failed to state a claim against the individual defendants.

Plaintiffs’ Complaint alleges all claims against both the City of Scottsdale and the 

members of the City Council in their official capacities. The claims against the City Council 

members should be dismissed for two reasons. First, as a threshold matter, the official claims 

against the City Council members are duplicative of the claims against the City, and therefore, 

must be dismissed. See, e.g., Sweet v. City of Mesa, CV-17-00152-PHX-GMS, 2018 WL 

2464111, at *3 (D. Ariz. June 1, 2018) (dismissing official capacity claims as duplicative of 

claims against municipality). As the Supreme Court has made clear, claims against City officials 

in their official capacity are claims against the City. Kentucky v. Graham, 473 U.S. 159, 166 

(1985). (an official capacity suit is “to be treated as a suit against the entity . . . . for the real 

party in interest is the entity”). As a result, ‘“if individuals are being sued in their official 

capacity as municipal officials and the municipal entity itself is also being sued, then the claims 

against the individuals are duplicative and should be dismissed.”’ Sweet, 2018 WL 2464111, at 

*3 (quoting Vance v. Cty. of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996)).

Second, Plaintiffs’ Complaint fails to allege that the City Council took any action against 

Plaintiffs or deprived Plaintiffs of any rights. Rather, as the Complaint demonstrates, the 

decision to not allow the Satanic Temple’s planned invocation was handled entirely by 

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administrative staff and the City Manager, not the City Council.6 Plaintiffs’ allegation that 

Mayor Lane was responsible for unilaterally implementing a rule that required substantial 

connections to Scottsdale is a bare conclusion at odds with the emails the Satanic Temple 

received regarding the City’s policy and the City Manager’s decision.7 Rather, the only 

communications from the Council show that while they were not personally in favor of the 

Satanic Temple giving the invocation, they relied on professional staff to determine who could 

deliver an invocation and on what conditions.8 And while the Mayor did mention the denial of 

the Satanic Temple’s invocation attempt in his election materials as a positive 

“accomplishment” for the City,9 that after-the-fact portrayal (made as a candidate for office 

outside the Mayor’s official capacity) would not give rise to any claim against the Mayor or 

other Council members for a decisions they admittedly did not make.

II. Plaintiffs have failed to state an Establishment Clause claim.

Plaintiffs allege that the City and the City Council have violated the Establishment 

Clause by “permitting regular official sectarian invocations to open City Council meetings 

while denying the Satanic Temple the same right.”10 Plaintiffs likewise allege that they consider 

the invocations impermissibly sectarian because they “are frequently Christian in nature, 

 

6 See Compl. ¶¶ 22, 24, 27, 29 (describing Plaintiffs’ interactions with Management 

Assistant to Mayor and City Council in scheduling invocation); Exs. 2, 3, 7 (email 

correspondence with Management Assistant, describing decision coming from City Manager).

7 Compare id. with Compl. ¶ 37.

8 See Compl. Ex. 1 (email from Councilwoman Littlefield saying that while she does not 

want the Satanic Temple to give the invocation, the “Council hasn’t had a say on this issue”); 

Ex. 6 (email from Councilman David Smith saying that he shares constituent’s concern on 

invocation, but “I am informed permission was given” to Satanic Temple).

9 See Compl. Ex. 8.

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making express sectarian references, such as to Jesus Christ”11 and that they consider such 

prayers “divisive and exclusionary.”12

But Legislative prayers, even when sectarian in nature, by themselves do not violate the 

Establishment Clause. Town of Greece v. Galloway, 134 S. Ct. 1811, 1818 (2014).

(“[L]egislative prayer, while religious in nature, has long been understood as compatible with 

the Establishment Clause.”). In Town of Greece, the plaintiffs alleged that the Town of Greece 

violated the Establishment Clause “by preferring Christians over other prayer givers and 

sponsoring sectarian prayers, such as those given ‘in Jesus’ name.’” Id. The Supreme Court 

rejected their arguments, holding that opening legislative sessions with sectarian prayers were 

part of our nation’s tradition from its earliest days, and that “[a]bsent a pattern of prayers that 

over time denigrate, proselytize, or betray an impermissible government purpose,” sectarian 

prayers do not violate the Constitution. Id. at 1823-24. Similarly, the Court rejected the 

argument that the Town’s invitation of almost exclusively Christian prayer givers violated the 

Constitution. “So long as the town maintains a policy of nondiscrimination, the Constitution 

does not require it to search beyond its borders for non-Christian prayer givers in an effort to 

achieve religious balancing.” Id. at 1824. That result, the Court noted, was consistent with a 

long line of legislative prayer cases, including Marsh v. Chambers, in which the Court approved 

the constitutionality of a state legislature hiring a paid Christian chaplain to open each 

legislative session, notwithstanding that a clergyman of only one denomination had been 

 

10 Compl. ¶ 43.

11 Compl. ¶ 18.

12 Compl. ¶ 10.

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selected for 16 years or that the prayers were exclusively from the Judeo-Christian tradition. 

463 U.S. 783 (1983).

Plaintiffs have not alleged that the invocations given before Scottsdale City Council 

meetings have over time denigrated, proselytized, or otherwise betrayed any impermissible 

government purpose. At most, they have alleged, without any supporting facts, that the prayers

were frequently Christian, “reflected the Judeo-Christian faith,” and did not mention nonChristian deities or use non-Christian language.13 As demonstrated in Town of Greece, Marsh, 

and other legislative prayer cases, those allegations are not enough to state a claim under the 

Establishment Clause. See, e.g., Rubin v. City of Lancaster, 710 F.3d 1087, 1100 (9th Cir. 2013)

(rejecting claim that sectarian prayer violated Establishment Clause and noting that deciding

“what amounts to a ‘sectarian reference’ not only embroils judges in precisely those 

intrareligious controversies that the Constitution requires us to avoid, but also imposes on us a 

task that we are incompetent to perform”).

Likewise, Plaintiffs’ allegation that the Satanic Temple was excluded from participating

in the invocation fails to state a valid Establishment Clause claim. As the Complaint itself 

alleges, the Satanic Temple was excluded based on a policy that only members of groups with a 

substantial connection to the Scottsdale community are permitted to give the invocation.14 To 

state a claim that the Satanic Temple’s exclusion under the policy violates the Constitution, 

Plaintiffs needed either to state a plausible claim for a facial challenge to Scottsdale’s policy or

allege some fault with the policy as-applied. Plaintiffs have not done either.

 

13 Compl. ¶¶ 19-20.

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Plaintiffs cannot state a plausible claim for a facial challenge to Scottsdale’s policy given 

that the policy is facially neutral and nondiscriminatory, and courts have expressly approved 

similarly worded policies against Establishment Clause challenges. In Rubin v. City of 

Lancaster, the City of Lancaster, after a challenge to its prayer practice, adopted a formal policy 

of soliciting volunteers from “religious groups with an established presence” in the city. 710 

F.3d at 1089. The Ninth Circuit upheld the City’s policy, noting that it was facially neutral and 

did not affiliate the city with any sect, regardless of whether the policy resulted in a higher 

amount of Christian invocations due to the demographics of the volunteers. Id. at 1099-1100. 

See also Simpson v. Chesterfield Cty. Bd. of Sup’rs, 404 F.3d 276, 279 (4th Cir. 2005) 

(approving policy under which Board of Supervisors invited religious leaders from 

congregations within Chesterfield County by taking addresses from phone book); Atheists of 

Fla., Inc. v. City of Lakeland, 779 F. Supp. 2d 1330, 1342 (M.D. Fla. 2011) (approving a policy 

allowing invocations from “all religious congregations with an established presence in the local 

community”); Jones v. Hamilton Cty., 891 F. Supp. 2d 870, 887 (E.D. Tenn. 2012), aff’d sub 

nom. Jones v. Hamilton Cty. Gov’t, 530 F. App’x 478 (6th Cir. 2013) (same).

Nor can Plaintiffs state a claim based on an as-applied challenge. Plaintiffs do not allege 

any specific faults with the policy or its application to the Satanic Temple. Plaintiffs do allege 

that Mayor Lane unilaterally imposed the policy,

15 but that bare conclusion is not supported by 

any facts and as explained above, is belied by the exhibits to the Complaint. Likewise, Plaintiffs

allege that in their initial contact with the Management Assistant, there was no application 

 

14 Compl. ¶ 32.

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process or inquiries to location or community ties.16 Yet even taken as true, those allegations do 

not state a claim that the policy as-applied violates the Establishment Clause. Scottsdale’s 

policy does not unconstitutionally discriminate against the Satanic Temple even if it were

unilaterally imposed by the Mayor in his official capacity, or because the substantial connection 

requirement was not explained from the start by the front-line administrative staffer who fielded 

the Satanic Temple’s first request.

Taken together, the allegations in Plaintiffs’ Complaint establish only that, while the 

Satanic Temple does not like Scottsdale’s policy, the policy is facially neutral, applies to all 

faith groups, and was applied as written. None of Plaintiffs’ allegations states a claim that the 

City through its policy purposefully discriminated against the Satanic Temple on the basis of 

religion. See, e.g., Town of Greece, 134 S. Ct. at 1824 (prayer policy constitutional despite 

pattern of Christian prayers “[s]o long as the town maintains a policy of nondiscrimination”); 

Bormuth v. County of Jackson, 870 F.3d 494, 514 (6th Cir. 2017) (rejecting challenge to 

commissioner-led prayer practice that was exclusively Christian because where county 

maintained a facially neutral, nondiscriminatory prayer policy, the Establishment Clause was 

satisfied).

The Establishment Clause does not require that Scottsdale end its prayer practice, dictate 

that prayer givers offer nonsectarian prayers in its meetings, or relinquish control over the 

Council microphone to anyone who demands it. Plaintiffs’ allegations to the contrary regarding 

what they deem the sectarian nature of past prayers and the Satanic Temple’s exclusion under 

 

15 Compl. ¶ 37.

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the City’s facially neutral invocation policy do not a state a claim for an Establishment Clause 

violation. 

III. Plaintiffs’ equal protection claim fails as a matter of law.

Plaintiffs’ second claim alleges that “Defendants’ preference of certain religious 

denominations and discrimination against the Satanic Temple” violates the Equal Protection 

Claus of the U.S. Constitution. This claim fails for two reasons: (1) equal protection analysis 

does not apply to individual claims of exclusion from the opportunity to give an invocation at a 

government meeting, and (2) Plaintiffs do not meet the essential element of an equal protection 

claim: that they were treated differently from those who were similarly situated. 

Legislative prayer cases, in which individuals challenge either the practice of permitting 

invocations at government meetings or claim a denial of the right to participate in the 

invocations, are governed only by the Establishment Clause, and not the Equal Protection 

Clause. See, e.g., Simpson, 404 F.3d at 288 (4th Cir. 2005) (affirming district court’s rejection 

of equal protection challenge brought by Wiccan who was denied opportunity to give 

invocation at county meeting on grounds that invocation, even when given by citizen, was 

government speech “subject only to the proscriptions of the Establishment Clause”) (citing 

Rosenberger v. Rector, 515 U.S. 819, 833 (1995)); Fields v. Speaker of the Pa. House of Reps., 

251 F. Supp. 3d 772, 792 (M.D. Pa. 2017) (“We join the unanimous consensus of courts before 

us to conclude that legislative prayer is subject to review under the Establishment Clause 

alone.”); Coleman v. Hamilton Cty., 104 F. Supp. 3d 877, 891 (E.D. Tenn. 2015) (“[L]egislative 

 

16 Compl. ¶ 25.

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prayer cases—such as this one—are subject to analysis only under the Establishment Clause of 

the First Amendment, and not under the Equal Protection Clause of the Fourteenth 

Amendment.”); Atheists of Fla., 779 F. Supp. 2d at 1342 (same). 

But even under an equal protection analysis, Plaintiffs have failed to state a claim. “The 

equal protection clause of the fourteenth amendment guarantees like treatment to all persons 

who are similarly situated; it does not, however, deny a state the power to treat different classes 

of people in different ways as long as the classification is reasonable.” State v. Beckerman, 168 

Ariz. 451, 453, 814 P.2d 1388, 1390 (App. 1991).

Here, Plaintiffs do not, and cannot, allege that they are similarly situated to the leaders of 

local, Scottsdale-based faith groups who have given invocations in front of the City Council as 

permitted by the City’s policy. See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008) 

(Parties allegedly treated differently in violation of the Equal Protection Clause are similarly 

situated only when they are “arguably indistinguishable”). Plaintiffs do not, and cannot, allege 

that they are Scottsdale residents, that the Satanic Temple has a physical presence in Scottsdale, 

or that Plaintiffs are otherwise substantially connected to the community. 

Nor can Plaintiffs allege that the City’s “substantial connection” requirement is 

unreasonable. The purpose of the invocation is to lend gravity to the proceedings by inviting 

reflection on “shared ideals and common ends.” Town of Greece, 134 S. Ct. at 1823. In the 

context of a local municipal meeting, restricting the invocation to those with substantial 

connections to the municipality is a reasonable restriction to affect that purpose and draw the 

community together through shared connections. Local faith leaders who serve the community 

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are recognized within the City and represent the citizens of Scottsdale. Those local leaders also 

have a vested interest in the City and its governance that outside groups cannot match. 

Plaintiffs likewise fail to allege that other non-Scottsdale faith groups were not subject to 

the same facially neutral policy or that the policy was inconsistently applied. Rather, Plaintiffs’ 

Complaint alleges facts that show the City carefully considered Plaintiffs’ request but ultimately 

decided to continue to allow only faith groups that have a substantial connection to the 

community to give the invocation, as is the City’s right.

IV. Plaintiffs’ state law claim is untimely.

Plaintiffs’ third claim alleges that the City’s actions constitute a violation of Article 20, 

section 1 of the Arizona Constitution, the Toleration of Religious Sentiment Clause. In Arizona, 

all state law claims against a municipality are subject to a one-year statute of limitations. A.R.S. 

§ 12-821 (“All actions against any public entity or public employee shall be brought within one 

year after the cause of action accrues and not afterward.”). Plaintiffs’ claim accrued, at the 

latest, on May 23, 2016, when the City notified Plaintiffs that the City would not allow 

Plaintiffs to offer an invocation.17 Plaintiffs filed their complaint in February 2018, well more 

than a year after they suffered their alleged injury. As a result, their state law claim is timebarred and must be dismissed. 

///

///

///

 

17 Compl. ¶ 32, Ex. 7.

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V. Plaintiffs’ § 1983 claim is not an independent cause of action.

Plaintiffs’ § 1983 claim is not a standalone claim, but instead depends on an underlying 

violation of Plaintiffs’ rights. Because Plaintiffs’ other claims are defective, Plaintiffs’ § 1983 

claim also must be dismissed. 

DATED this 12th day of June, 2018.

SCOTTSDALE CITY ATTORNEY’S OFFICE

By: /s/ Joshua M. Crum

Joshua M. Crum, Assistant City Attorney

3939 North Drinkwater Boulevard

Scottsdale, Arizona 85251

Attorneys for City Defendants

CERTIFICATE OF SERVICE

I hereby certify that on this 12th day of June, 2018, I electronically transmitted the attached 

document to the Clerk’s office using CM/ECF System for filing, and transmittal of a Notice of 

Electronic Filing to the following CM/ECF registrants:

Stuart P. de Haan

de Haan Law Firm, PLLC

100 N Stone Ave., Suite 512

Tucson AZ, 85701

Attorneys for Plaintiffs

By: /s/ Brittany Leonard

An Employee of the Scottsdale City Attorney’s Office

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