Baird v. Lynch

• Citation: 390 F. Supp. 740
• Decision Date: 26 November 1974
• Docket Number: No. 71-C-254.,71-C-254.
• Parties: William R. BAIRD and Mary Extrom, Individually and on behalf of others similarly situated, Plaintiffs, v. Humphrey D. LYNCH, Individually and as District Attorney of Dane County, Wisconsin, et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

390 F. Supp. 740

William R. BAIRD and Mary Extrom, Individually and on behalf of others similarly situated, Plaintiffs, v. Humphrey D. LYNCH, Individually and as District Attorney of Dane County, Wisconsin, et al., Defendants.

No. 71-C-254.

United States District Court, W. D. Wisconsin.

November 26, 1974.

COPYRIGHT MATERIAL OMITTED

Percy L. Julian, Jr. and Anthony J. Theodore, Madison, Wis., for plaintiffs.

Humphrey J. Lynch, Dist. Atty., for Dane County, Madison, Wis., for defendants Lynch and Ferris.

William Jansen, Deputy City Atty. for City of Madison, Madison, Wis., for defendant Couper.

Robert McConnell, Asst. Atty. Gen., of Wis., Madison, Wis., for defendants Hanson and Miller.

Before FAIRCHILD, Circuit Judge, and GORDON and DOYLE, District Judges.

OPINION AND ORDER

This is a civil action in which plaintiffs seek declaratory and injunctive relief restraining defendants from enforcing a Wisconsin statute which places certain limitations on the sale and exhibition of devices designed to procure miscarriages or prevent pregnancy. (Because only declaratory and injunctive relief is sought, on its own motion the court has substituted the present incumbents of the respective offices for those who were incumbents when the action was commenced.) The complaint was filed just prior to a lecture scheduled for plaintiff Baird in which he planned to discuss the subject of birth control and abortion and to exhibit contraceptive devices. Plaintiffs sought a preliminary injunction restraining defendants from enforcing the statute against plaintiffs, Baird and Extrom. Judge Doyle denied that motion. Subsequently, plaintiffs applied for the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284, and this court was convened. Presently before the panel is the plaintiffs' "Motion for Summary Judgment or for the Determination of Legal Issues Prior to Trial." On the basis of the allegations in the complaint admitted in the answer and on the basis of the affidavits filed by the parties, we find that there is no genuine issue as to the material facts set forth in the following section.

FACTS

Plaintiff Extrom is an unmarried woman who resides in Wisconsin and who wishes to purchase contraceptive devices and to listen to and observe speeches explaining and demonstrating the use of contraceptive devices. Plaintiff Baird directs the operation of a health center in the state of New York which distributes information on contraception, pregnancy, and abortion. The center also distributes contraceptive devices to its patients. Baird lectures and speaks throughout the country on the subject of birth control and abortion. Often he illustrates his lectures by displaying contraceptive and abortion devices. Defendants are various law enforcement officials for the state of Wisconsin, for Dane County, for the city of Madison, and for the University of Wisconsin.

The challenged statute, § 450.11,¹ defines the term "indecent articles" in subsection one as devices designed to procure a miscarriage or prevent pregnancy. Subsection two prohibits the distribution of advertisements for "indecent articles" and also states: "nor shall any person exhibit or display any indecent article to the public." Subsection three, prohibiting the sale of such articles in vending machines, is not involved in this lawsuit. Subsection four provides in part: "No person shall sell or dispose of or attempt or offer to sell or dispose of any indecent articles to or for any unmarried person . . . ." Subsection five prescribes a penalty of a fine of from 100 to 500 dollars, or imprisonment not to exceed six months, or both.

Rennebohm Drug Stores, Inc. is the largest drug store chain in the city of Madison, owning and operating 16 drug stores out of a total of approximately 60 in the city. On May 27, 1971, the Rennebohm Corporation entered a plea of no contest and was found guilty by the Dane County Court, Branch II, of a charge of selling a non-prescriptive contraceptive device to an unmarried person contrary to § 450.11. That case was prosecuted by the then Dane County District Attorney. Since that prosecution it has been the policy of the Rennebohm Corporation to refuse to sell contraceptive devices to unmarried persons.

On July 22, 1971, plaintiff Extrom wished to purchase vaginal foam (a contraceptive device) and attempted to do so at three drug stores on the Capital Square in the city of Madison. In each instance she ascertained from an employee of the store that it carried vaginal foam. In two instances, the employee asked her if she were married, and, discovering that she was not, refused to sell her the foam. In the third instance, the plaintiff volunteered that she was not married, whereupon the employee stated that he could not sell her the foam.

Anticipating that plaintiff Baird's planned lecture and display in Madison might subject him to prosecution, counsel for Baird delivered a letter on July 16, 1971, to the receptionist in the district attorney's office. The letter described Baird's intended lecture and display and requested that the district attorney indicate what action he would take should Baird follow his plan through. As of July 23, 1971, the district attorney had made no response to the letter. The district attorney had stated publicly his intention to enforce the provisions of § 450.11.

On August 3, 1971, Baird addressed a large public audience including plaintiff Extrom at the University of Wisconsin —Madison on the subject of birth control, abortion, and population control. He limited his presentation to a speech accompanied by a display of facsimiles of birth control devices and by the distribution of literature. Although he wished to exhibit and distribute actual birth control and abortion devices, he did not do so for fear of prosecution by defendants. Various law enforcement officials employed by defendants, including a detective from the Dane County Sheriff's Department, were present in the audience. At the close of the lecture the detective closely examined the board upon which Baird had displayed the facsimile contraceptive devices.

Plaintiff Baird desires to return to Madison in the future for further presentations concerning birth control, abortion, and population control. Because he fears criminal prosecution, Baird would refrain from exhibiting or distributing to unmarried persons actual contraceptive or abortion devices on such future occasions unless prosecution under § 450.11 is restrained. Plaintiff Extrom desired to listen to and observe the lecture and exhibit in the form that Baird had originally intended to deliver. In addition, she wishes to purchase contraceptive devices.

OPINION

The complaint sets forth two claims: (1) that § 450.11(2) is unconstitutional insofar as it prohibits the exhibition and display of contraceptive and abortion devices; (2) that § 450.11(4) is unconstitutional insofar as it prohibits the sale or disposal of such devices to unmarried persons.

1. The first claim

Plaintiffs have standing to challenge the constitutionality of § 450.11(2). Plaintiff Extrom attended plaintiff Baird's lecture of August 3, 1971, wishing not only to hear the lecture but also to observe an exhibit of contraceptive and abortion devices. It is reasonable to infer that she would attend such lectures and displays in the future should they be presented in the Madison area. Plaintiff Baird has lectured throughout the country on the subjects of birth control and abortion and has often accompanied his lectures with exhibits of birth control and abortion devices. He desires to return to Madison to make another lecture and to accompany the lecture with a display of birth control and abortion devices. As the potential communicator and the potential receiver of certain forbidden communications, plaintiffs are appropriate parties to challenge the statute proscribing that communication. Flast v. Cohen, 392 U. S. 83, 99-100, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1969).

We turn to the question of justiciability. Defendants contend that this is not a live, concrete controversy. Addressing this question in Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969), the Court stated that "the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Here the then incumbent Dane County District Attorney stated publicly his intention to enforce the provisions of § 450.11. Baird attempted to learn from the district attorney whether his planned lecture and exhibit would subject him to prosecution under § 450.11. The district attorney did not respond. When Baird presented his lecture and display on August 3, 1971, law enforcement personnel employed by the defendants were present and at least one of them closely examined the display board upon which Baird had fastened facsimile contraceptive devices. From these facts it can fairly be inferred that, had Baird displayed actual contraceptive or abortion devices, he would have subjected himself to a strong probability of prosecution under § 450.11(2). Since Baird's fear of prosecution is real and not speculative, and because he desires to present a lecture and exhibit in Madison in the future, we conclude that this case presents a live controversy and is therefore justiciable.

We turn to the issue of abstention. At an earlier stage of this lawsuit when this case was before Judge Doyle as a single-judge court on a motion for a preliminary injunction, he stated that there is a reasonable and natural construction of § 450.11(2) which avoids the constitutional question posed by these plaintiffs; that it is more than possible that the courts of Wisconsin will construe § 450.11(2) to proscribe only those displays and exhibits of contraceptive and...