Auburn Police Union v. Carpenter

• Decision Date: 05 January 1993
• Docket Number: Nos. 92-1951,92-2028,s. 92-1951
• Citation: 8 F.3d 886
• Parties: AUBURN POLICE UNION, et al., Plaintiffs, Appellants, v. Michael E. CARPENTER, Attorney General of the State of Maine, Defendant, Appellee. AUBURN POLICE UNION, et al., Plaintiffs, Appellees, v. Michael CARPENTER, Attorney General of the State of Maine, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 886

8 F.3d 886

62 USLW 2356

AUBURN POLICE UNION, et al., Plaintiffs, Appellants, v. Michael E. CARPENTER, Attorney General of the State of

Maine, Defendant, Appellee.

AUBURN POLICE UNION, et al., Plaintiffs, Appellees, v. Michael CARPENTER, Attorney General of the State of Maine,

Defendant, Appellant.

Nos. 92-1951, 92-2028.

United States Court of Appeals First Circuit.

Heard Jan. 5, 1993.

Decided Nov. 12, 1993.

Errol Copilevitz with whom John P. Jennings, Jr., Copilevitz, Bryant, Gray & Jennings, P.C., Leland N. Chisholm and Kelly, Remmel & Zimmerman, were on brief, for plaintiffs.

MacKenzie Canter, III, Leonard J. Henzke, Jr., Lehrfeld, Canter, Henzke & Diskin and George Gills, on brief, for Maine State Troopers Ass'n, Nat. Ass'n of Police Officers, Nat. Troopers Coalition and Texas State Troopers Ass'n, amici curiae.

Stephen L. Wessler, Deputy Atty. Gen., with whom Michael E. Carpenter, Atty. Gen., and Thomas D. Warren, Deputy Atty. Gen., were on brief, for defendant.

Before CYR, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

The State of Maine has enacted a law (hereinafter "the Act") prohibiting a person from soliciting property from the general public that tangibly benefits any law enforcement officer, agency or association. ¹ Violations of the Act are declared to contravene the Maine Unfair Trade Practices Act, and they may be enjoined and penalized civilly. Me.Rev.Stat.Ann. tit. 5, § 209 (West 1992).

Plaintiffs comprise a coalition of police unions, individual law enforcement officers, a professional fundraiser and a private citizen. ² They sued in the United States District Court for the District of Maine pursuant to 42 U.S.C. § 1983, seeking to enjoin the Act and to have it declared unconstitutional under the First and Fourteenth Amendments to the United States Constitution.

While declaring that the provision for injunctive enforcement was an unconstitutional prior restraint, the district court otherwise upheld the Act against plaintiffs' overbreadth and equal protection challenges. Both the State of Maine and plaintiffs appeal. We vacate the district court's determination that the injunctive relief provision amounts to an impermissible prior restraint, and affirm the district court's upholding of the constitutionality of the Act.

I.

As the Act was originally enacted in 1977, its sole exception was for solicitations by or on behalf of law enforcement officers campaigning for election to public office--an exception still in existence. Me.Rev.Stat.Ann. tit. 25, § 3703. In 1983, the Act was amended to allow game wardens to sell historical publications describing state parks. ³ Me.Rev.Stat.Ann. tit. 25, § 3702.

In 1983, Maine's Attorney General brought an action under the Unfair Trade Practices Act, Me.Rev.Stat.Ann. tit. 5, §§ 205-A to 214, against the Maine State Troopers Association ("M.S.T.A.")--a law enforcement association as defined in Me.Rev.Stat.Ann. tit. 25, § 3701(2)--to enjoin the M.S.T.A. from engaging in solicitations in violation of § 3702. The Attorney General alleged that the M.S.T.A. had sold and offered to sell advertisements to Maine businesses for insertion in its magazine, "The Maine State Trooper." The M.S.T.A. challenged the Act's constitutionality, and the case went to the Maine Supreme Judicial Court (the "Law Court"), which in 1985 upheld the Act as constitutional. See State v. Maine State Troopers Ass'n ("MSTA"), 491 A.2d 538 (Me.), appeal dismissed, 474 U.S. 802, 106 S.Ct. 34, 88 L.Ed.2d 28 (1985).

The Law Court found that Maine had a compelling interest in avoiding police coercion. It found irrelevant the subjective intent of the solicitor and the absence of any complaint of coercion: "... at least the appearance of coercion inheres in every solicitation on behalf of law enforcement," undermining "the integrity of the office." Id. at 542-43. The Law Court noted the Maine Legislature's finding that "[s]olicitation by a law enforcement agency is inherently coercive." Id. In the court's view, the State's interest "in protecting the reputation of its law enforcement bodies is undeniably substantial. Indeed, we would be hard pressed to suggest a weightier interest." Id. Holding the statute not to be "fatally overbroad," the Law Court emphasized that "the integrity of the State's law enforcement agents is cast in doubt with every solicitation on their behalf." Id. Thus the court found the Act constitutional.

The Law Court, however, affirmed the lower court's decision that under the Equal Protection Clause of the Fourteenth Amendment, the State could not impose any greater restrictions on the solicitation activities of other law enforcement officers than were imposed upon state wardens. Id. at 544. ⁴ The Maine State Troopers Association appealed from the Law Court's decision to the Supreme Court of the United States, which summarily dismissed the appeal for want of a substantial federal question. Maine State Troopers Ass'n v. Maine, 474 U.S. 802, 106 S.Ct. 34, 88 L.Ed.2d 28 (1985).

In 1989, following the Supreme Court's summary dismissal of the appeal in MSTA, the Maine Legislature amended the Act so as to permit the Department of the Attorney General to charge for the cost of consumer education materials. Me.Rev.Stat. tit. 25, § 3706. The Legislature additionally amended the Act to permit solicitations for a period of one year, later extended an additional six months, to raise funds for the construction of a memorial to slain police officers. Priv. & Spec. Laws 1989, Ch. 47; Priv. & Spec. Laws 1990, Ch. 114.

In 1990, the same plaintiffs who brought the present suit challenged the constitutionality of the Act in the federal district court. See Auburn Police Union v. Tierney ("Auburn I"), 756 F.Supp. 610 (D.Me.1991). The district court affirmed the magistrate judge, who ruled in a comprehensive opinion that the Supreme Court's summary dismissal of MSTA was not a binding precedent because the Legislature's enactment of the above exceptions had undermined MSTA's premise that all solicitation by law enforcement officers and organizations is inherently coercive. Id. at 616. ⁵ The court held that the Act was unconstitutionally overbroad and invalid on its face because "[a] complete prohibition on police solicitation is not narrowly tailored to Maine's evident interest in banning some, but not all, such solicitation." Id. at 618. The court further concluded that the Act violated the Equal Protection Clause of the Fourteenth Amendment because the State could not demonstrate a substantial governmental interest in permitting police solicitation for a memorial to slain officers, while prohibiting police solicitation for other causes. Id. at 619. Finally, the district court determined that the Act constituted an impermissible prior restraint because it "silences by fiat an entire category of charitable solicitation." Id. at 618. The State of Maine did not appeal in that case.

Instead, in 1991, the Maine Legislature repealed the exemptions, except for the exemption for solicitations by or on behalf of law enforcement officers running for public office. ⁶ The Legislature then reenacted the prohibition on solicitations with one material change--the Legislature added the word "tangibly" prior to the word "benefits" in the new § 3702-A so as to "clarif[y] that the ban on solicitations applies only when the solicitations provide a tangible benefit to law enforcement." Sen. Amend. B to L.D. 1682 (115th Legis.1991).

In October 1991, the Department of the Attorney General proposed rules under the Unfair Trade Practices Act, Me.Rev.Stat.Ann. tit. 5, § 207, defining the word "tangibly" as used in § 3702-A. ⁷ Me. Dep't of Att'y Gen. 26-239 (1991). These rules provide that "a solicitation which is completely unrelated to law enforcement officers, although it increases good will toward law enforcement, does not confer a tangible benefit," whereas "[a] solicitation which funds a law enforcement program, which otherwise would have to be funded through law enforcement's own budgeting processes, does confer a tangible benefit." Id. ⁸

Plaintiffs brought the present suit on September 27, 1991, seeking a declaratory judgment that § 3702-A is both facially unconstitutional and unconstitutional as applied. Preliminary and permanent injunctions against enforcement of § 3702-A were requested. Several plaintiffs alleged that they wanted to solicit advertising from the business community and to place those advertisements in police magazines like the "Maine State Trooper," and that the Act prohibited this conduct. According to plaintiffs, § 3702-A violates the First and Fourteenth Amendments because it is unconstitutionally overbroad, serves as an impermissible prior restraint on their freedom of speech, and denies to them the equal protection of the laws.

The district court held that the provision for enforcement of the Act through injunctive relief created an impermissible prior restraint. Otherwise, it upheld the constitutionality of § 3702-A. See Auburn Police Union v. Carpenter ("Auburn II"), 798 F.Supp. 819 (D.Me.1992). Plaintiffs appeal, arguing that the Act is unconstitutionally overinclusive and underinclusive. Maine argues in response that the United States Supreme Court's summary dismissal of the appeal in MSTA must be accorded binding precedential effect on the issues of overbreadth and underinclusiveness. Even if the Supreme Court's summary dismissal does not control, Maine argues that the Act must still be upheld because it is narrowly tailored to serve a compelling interest. Maine also appeals from the district court's declaration that the injunctive relief provision constitutes an impermissible prior restraint.

II.

This appeal presents difficult questions. We must decide, first, what issues are foreclosed by the Supreme Court's dismissal for want of a federal question of the appeal in MSTA. And, if any...