Berner v. Delahanty

Decision Date10 September 1997
Docket NumberNo. 96-2122,96-2122
Citation129 F.3d 20
PartiesSeth BERNER, Plaintiff, Appellant, v. Judge Thomas E. DELAHANTY, II, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Seth Berner, pro se.

Peter J. Brann, Assistant Attorney General, Augusta, ME, with whom Andrew Ketterer, Attorney General, and Thomas D. Warren, State Solicitor, were on brief, for appellee.

Before SELYA, Circuit Judge, ALDRICH and CAMPBELL, Senior Circuit Judges.

SELYA, Circuit Judge.

Attorney Seth Berner claims that lawyers have an absolute right, protected by the First Amendment, to wear political buttons in the courtroom as long as the buttons do not disrupt judicial proceedings. We reject that proposition and affirm the district court's dismissal of Berner's action for declaratory and injunctive relief.


The facts, drawn from the plaintiff's verified complaint and construed in his favor, see Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989), can be recounted readily. The defendant, Thomas E. Delahanty, II, is an associate justice of the Maine Superior Court. On October 31, 1995, Berner was seated in the gallery of Judge Delahanty's courtroom, waiting for his turn to appear before the court. Berner wore a circular button pinned to his lapel. The button was approximately two inches in diameter and bore the words "No on 1--Maine Won't Discriminate." This legend expressed opposition to a statewide referendum that Maine voters were scheduled to consider during the November election. 1 Neither the pin nor its message were related to Berner's business before the court.

At some point during the day's proceedings, Judge Delahanty called Berner to the bench. The following exchange took place:

THE COURT: Mr. Berner ... Can you remove the political pen [sic] while you're in the courtroom?

ATTORNEY BERNER: Your Honor, what happened to my right to political speech?

THE COURT: Not in the courtroom. We don't take sides.

ATTORNEY BERNER: I want the record to reflect that I don't think there's any authority for that.

THE COURT: The courtroom is not--that may be, but the courtroom is not a political forum.

ATTORNEY BERNER: Your honor, I want the record to reflect that I object to that.

Reasonably believing that he would be held in contempt if he did not comply with the court's order, Berner removed the button. During a chambers conference later that day, the judge told Berner that he planned to perpetuate the prohibition against lawyers wearing political buttons in his courtroom unless and until he was overruled by a higher authority.

Berner took refuge in the United States District Court, where he sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 (1994). His rifle-shot complaint contained a single claim: that the button ban violated the First Amendment. In support of this claim Berner alleged that his button had not caused any disruption of the ongoing proceedings and that Judge Delahanty "routinely permitted the wearing in his courtroom of other ornamentation supporting causes, such as crucifixes and insignia for armed forces or fraternal orders."

A flurry of motions ensued. The district court denied Berner's motion for a preliminary injunction, finding an insufficient likelihood of success on the merits. The court then addressed the defendant's motions to dismiss the action for lack of standing and failure to state an actionable claim. The court finessed the former by assuming, without deciding, that Berner had standing to sue. See Berner v. Delahanty, 937 F.Supp. 62, 62 (D.Me.1996).

Turning to the legal sufficiency of the complaint, the court held that the controlling legal standard was the forum-specific analysis of Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3447-48, 87 L.Ed.2d 567 (1985) (discussing varying levels of scrutiny applicable to governmental restrictions on speech in different fora). See Berner, 937 F.Supp. at 63. Because the parties "agree[d] that the state courtroom is a nonpublic forum," Judge Carter found, consistent with Cornelius, that the decision to limit the wearing of political buttons "need only be: (1) reasonable in light of the purpose which the court serves and (2) viewpoint neutral." Id. Building on this premise, the judge concluded that the restriction on political paraphernalia was a reasonable attempt to "shield the courtroom from the inevitable appearance of politicization," and that there was "no indication that [Judge Delahanty] intended to discourage one viewpoint and advance another." Id. Since he perceived the button ban to be a "reasonable viewpoint-neutral restriction," Judge Carter ruled that the complaint stated no claim upon which relief could be granted. Id.

On appeal, Berner assails the district court's analysis. He maintains that the court placed undue emphasis on Cornelius; that it erred in gauging the reasonableness of the ban; and, finally, that it failed to give appropriate weight to the defendant's tolerance of persons wearing other politically-tinged ornamentation.


We evaluate de novo a district court's dismissal of an action for failure to state a cognizable claim. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). In assaying such a dismissal, the appellate court, like the court that preceded it, must assume that the factual averments of the complaint are true and must draw all plausible inferences in the plaintiff's favor. See Leatherman v. Tarrant Cty. Narcotics Intell. & Coord. Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Dartmouth Review, 889 F.2d at 16.

In this case, the district court gracefully sidestepped the standing inquiry, preferring instead a pas de deux directly with the merits of the complaint. While we recognize the occasional availability of such a terpsichorean course, see, e.g., United States v. Stoller, 78 F.3d 710, 715 (1st Cir.1996) (explaining that a court may bypass a difficult jurisdictional question and instead dispose of the case on the merits if doing so favors the party challenging the court's jurisdiction); see also Rojas v. Fitch, 127 F.3d 184, 186-87 (1st Cir.1997) (employing Stoller principle to sidestep an inquiry into standing), in this appellate lambada we are reluctant to follow suit. Standing is a threshold issue in every federal case and goes directly to a court's power to entertain an action. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975); New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir.1996). Moreover, the general rule is that a court should first confirm the existence of rudiments such as jurisdiction and standing before tackling the merits of a controverted case. The exception discussed in Stoller is exactly that--an exception, which, in light of the danger that an ensuing decision on the merits might be rendered sterile by the tribunal's lack of authority to resolve the case, should be used sparingly. Resort should not be made to the exception where, as here, no substantial doubt attaches to the threshold issue. Hence, we choose to confront and resolve the standing question before proceeding to the merits. 2


The criteria for standing are well-rehearsed. To establish that a dispute qualifies as an Article III "case" or "controversy," enabling it to obtain a federal court audience, the party seeking to invoke federal jurisdiction must first demonstrate that

(1) he or she personally has suffered some actual or threatened injury as a result of the challenged conduct; (2) the injury can fairly be traced to that conduct; and (3) the injury likely will be redressed by a favorable decision from the court.

New Hampshire Right to Life, 99 F.3d at 13. We hasten to add, however, that the Court has placed a special gloss on cases in which a party seeks exclusively injunctive or declaratory relief. In such purlieus, standing inheres only if the complainant can show that he has suffered (or has been threatened with) "an invasion of a legally protected interest which is ... concrete and particularized," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992), together with "a sufficient likelihood that he will again be wronged in a similar way," City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 1670, 75 L.Ed.2d 675 (1983). In other words, the complainant must establish that the feared harm is "actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136 (citations and internal quotation marks omitted). It bears noting that the imminence concept, while admittedly far reaching, is bounded by its Article III purpose: "to ensure that the alleged injury is not too speculative." Id. at 564 n. 2, 112 S.Ct. at 2138 n. 2.

In addition to these benchmarks of constitutional sufficiency, standing doctrine "also embraces prudential concerns regarding the proper exercise of federal jurisdiction." United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir.1992). Under this rubric, courts generally insist that every complainant's tub rest on its own bottom. See id. (stating that a plaintiff ordinarily cannot sue to assert the rights of third parties). When the First Amendment is in play, however, the Court has relaxed the prudential limitations on standing to ameliorate the risk of washing away free speech protections. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984). Hence, when freedom of expression is at stake:

Litigants ... are permitted to challenge a [policy] not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the [policy's] very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

Broadrick v....

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