Auburn Police Union v. Tierney, Civ. No. 90-0042-P.

• Decision Date: 07 February 1991
• Docket Number: Civ. No. 90-0042-P.
• Parties: AUBURN POLICE UNION, et al., Plaintiffs, v. James TIERNEY, as Attorney General of the State of Maine, Defendant.
• Court: U.S. District Court — District of Maine

756 F. Supp. 610

AUBURN POLICE UNION, et al., Plaintiffs, v. James TIERNEY, as Attorney General of the State of Maine, Defendant.

Civ. No. 90-0042-P.

United States District Court, D. Maine.

February 7, 1991.

COPYRIGHT MATERIAL OMITTED

Leland N. Chisholm, Portland, Me., for plaintiffs.

Errol Copilevitz, John P. Jennings Jr., Kansas City, Mo., Stephen L. Wessler, Dept. Atty. Gen., Augusta, Me., for defendant.

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

GENE CARTER, Chief Judge.

The United States Magistrate Judge having filed with the Court on December 21, 1990, with copies to counsel, his Recommended Decision on Cross-Motions for Judgment on the Basis of a Stipulated Record, a copy of which is attached hereto and made part hereof as "Exhibit A"; and Defendant having filed, on January 2, 1991, his Objections to Portions of the Magistrate Judge's Recommended Decision and Request for De Novo Review by the District Court, to which Plaintiffs replied on January 8, 1991; and this Court having reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; and this Court having made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and this Court concurring with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision, and having determined that no further proceeding is necessary; it is ORDERED as follows:

(1) The Recommended Decision of the Magistrate Judge is hereby AFFIRMED;

(2) Plaintiffs' Motion for Judgment on the Basis of a Stipulated Record is hereby GRANTED;

(3) Defendant's Motion for Judgment on the Basis of a Stipulated Record is hereby DENIED;

(4) Judgment is hereby entered DECLARING that the provisions of 25 M.R.S.A. § 3702, as applied to Plaintiffs herein, is unconstitutional because it is facially overly broad, operates as an impermissible prior restraint upon Plaintiffs, and violates Plaintiffs' right to equal protection of the laws;

(5) Defendant, and all others acting for, on behalf of, or in concert with the Defendant, are hereby ENJOINED from enforcement of 25 M.R.S.A. § 3702 against Plaintiffs in any manner inconsistent with the foregoing declaratory judgment, and

(6) Plaintiffs shall recover reasonable attorneys' fees pursuant to 42 U.S.C. § 1988, and to that end Plaintiffs' counsel shall file, within ten (10) days of the entry of this order, an application for such fees, setting forth the pertinent details required by the Court to assess the reasonableness thereof; and Defendant shall respond thereto within ten (10) days of receipt of such application.

EXHIBIT A

RECOMMENDED DECISION ON CROSS-MOTIONS FOR JUDGMENT ON THE BASIS OF A STIPULATED RECORD

DAVID M. COHEN, United States Magistrate, Judge.

In this lawsuit challenging the constitutionality of § 3702 of the Solicitation by Law Enforcement Officers Act ("Act"), 25 M.R.S.A. §§ 3701-06, the plaintiffs and defendant James Tierney, attorney general of the state of Maine ("State" or "defendant"), seek judgment on the basis of a stipulated written record.¹ This procedural device allows a court to resolve any lingering issues of material fact in reaching its decision on the merits. Boston Five Cents Sav. Bank v. Secretary of the Dep't of Hous. & Urban Dev., 768 F.2d 5, 11-12 (1st Cir.1985).

The plaintiff police unions and police officers² want to solicit advertising from the general public for inclusion in publications, Stipulated Facts ¶¶ 27-30; plaintiff Charles Underwood wishes to advertise in and receive copies of police publications, id. ¶ 13; and plaintiff R.H. McKnight Co., Inc. d/b/a Brent-Wyatt East, a professional fundraiser and publisher, seeks to solicit advertisements for publications on behalf of the plaintiff unions and officers, id. ¶¶ 14-15, 27-30. The Act effectively bars all of the above activities by virtue of its prohibition against solicitation of property from the general public "when the property, or any part of it, in any way benefits, is intended to benefit or is represented to be for the benefit of any law enforcement officer, law enforcement agency or law enforcement association...." 25 M.R.S.A. § 3702. Violation of § 3702 is punishable as an unfair-trade practice. Id.

The plaintiffs charge that the State, in violation of 42 U.S.C. § 1983, has deprived them of rights secured under the United States Constitution. Specifically, the plaintiffs contend that the Act violates the First and Fourteenth Amendments in that it serves as an unconstitutional prior restraint on their freedom of speech, is unconstitutionally vague, is unconstitutionally overbroad and denies them equal protection of the laws.³ They therefore seek declaratory judgment of the unconstitutionality of § 3702 pursuant to 28 U.S.C. § 2201, preliminary and permanent injunctions against enforcement of § 3702 and recovery of attorney's fees and costs pursuant to 42 U.S.C. § 1988.

The State observes that in 1985 the Supreme Court summarily dismissed an appeal from a Maine Supreme Judicial Court ("Law Court") decision rejecting constitutional challenges to the Act. State v. Maine State Troopers Ass'n, 491 A.2d 538 (Me.), appeal dismissed, 474 U.S. 802, 106 S.Ct. 34, 88 L.Ed.2d 28 (1985) ("MSTA"). Insofar as it resolves the same constitutional issues, MSTA is binding upon this court, the State asserts. The State additionally contests all of the plaintiffs' claims on the merits.

For the reasons explicated below, I recommend that the court grant the plaintiffs' motion, and deny the defendant's motion, for judgment on the basis of a stipulated written record. The Act should be declared unconstitutional on grounds it operates as a prior restraint, is facially overbroad and denies the plaintiffs equal protection of the laws. Accordingly, I recommend that this court permanently enjoin enforcement of § 3702 and award the plaintiffs attorney's fees pursuant to 42 U.S.C. § 1988.

I. EFFECT OF SUPREME COURT'S SUMMARY ACTION

Summary actions by the Supreme Court are decisions on the merits of a case. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975). As such, they are binding on lower courts if certain preconditions are met. Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240-41, 53 L.Ed.2d 199 (1977) (per curiam). The Supreme Court has cautioned that lower courts must engage in a careful analysis to determine the precedential value of summary actions. Id. Summary affirmances or dismissals "without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Id. Lower courts must assess precedential significance "in the light of all of the facts." Id. at 177, 97 S.Ct. at 2241 (observing that lower court had wrongly judged itself bound by a summary action based on "very different" facts). Finally, summary actions "should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved." Id. at 176, 97 S.Ct. at 2240-41. Summary actions remain controlling until such time as Court doctrinal developments undermine their validity. Hicks, 422 U.S. at 344-45, 95 S.Ct. at 2289-90.

The plaintiffs present four arguments for freeing their case from the yoke of MSTA. Plaintiffs' Reply to Defendant's Memorandum in Support of Motion for Summary Judgment ("Plaintiffs' Reply Memorandum") at 2-8. Three of the contentions lack merit: (1) that MSTA and the instant case turn on "very different" facts, (2) that MSTA broke with Supreme Court precedent and thus lacks binding force and (3) that doctrinal developments since MSTA undercut its precedential value. The fourth contention, however, is persuasive. Changes to the Act since 1985 significantly alter the nature of the issues raised. Hence, the Supreme Court's summary action in MSTA does not foreclose fresh consideration of the merits in the instant case.

A. Factual Differences

The facts underlying MSTA and the instant case are strikingly similar. The defendant in MSTA, a Maine police association, sold advertising in a police publication in violation of the Act. The plaintiff Maine police officers and unions in the instant case wish to sell advertising in publications.

The plaintiffs observe that the advertising conducted in MSTA was by means "of letters, telephone calls, and inperson solicitations." Plaintiffs' Reply Memorandum at 6 (quoting MSTA, 491 A.2d at 540). They seek to distinguish their case in that they propose to hire a middleman—a professional solicitor who would employ such safeguards against coercion as written assurances that the police would visit no adverse consequences upon the reluctant customer. Id. at 6-7. Not every factual distinction is significant in assessing the precedential weight of a Supreme Court summary action. Members of Jamestown School Comm. v. Schmidt, 699 F.2d 1, 8-9 (1st Cir.), cert. denied, 464 U.S. 851, 104 S.Ct. 162, 78 L.Ed.2d 148 (1983). In the context of the Supreme Court's summary dismissal of MSTA, this factual difference pales. The question presented to the Supreme Court on appeal was the constitutionality of the Act's prohibition on

the sale of or attempt to sell any book, magazine or advertisement, when the sale benefits, is intended to benefit or is represented to be for the benefit of any Law Enforcement Association.... The enumerated acts are unlawful, regardless of whether the person performing the act is a law enforcement officer or not.

Appendix A to Memorandum in Support of Defendant James E. Tierney's Motion for Summary Judgment ("State's Memorandum") (Jurisdictional Statement) at 2. The Supreme Court therefore contemplated the question of complete prohibition of both direct and indirect...