DeGregory v. Giesing

• Decision Date: 16 March 1977
• Docket Number: Civ. A. No. H-75-313.
• Citation: 427 F. Supp. 910
• Court: U.S. District Court — District of Connecticut
• Parties: Anthony DeGREGORY, as President of Metal Trades Council of New London County, AFL-CIO, for himself and those similarly situated, Plaintiff, v. Timothy GIESING, as the Chief of Police for the City of Groton, and Ella T. Grasso, Governor of the State of Connecticut, Defendants.

427 F. Supp. 910

Anthony DeGREGORY, as President of Metal Trades Council of New London County, AFL-CIO, for himself and those similarly situated, Plaintiff, v. Timothy GIESING, as the Chief of Police for the City of Groton, and Ella T. Grasso, Governor of the State of Connecticut, Defendants.

Civ. A. No. H-75-313.

United States District Court, D. Connecticut.

March 1, 1977.

As Amended March 16, 1977.

David F. Sweeney, Jr., and Amato A. DeLuca, Breslin, Sweeney & Gordon, Warwick, R. I., Joseph J. Parrilla, Longolucco, Parrilla & Lenihan, Westerly, R. I., Samuel J. Fiore, Pawcatuck, Conn., for plaintiff.

James F. Brennan, Jr., Corp. Counsel, Groton, Conn., for defendant Giesing.

Robert W. Murphy, Asst. Atty. Gen., Carl R. Ajello, Atty. Gen., of the State of Connecticut, Hartford, Conn., for defendant State of Conn.

Raymond W. Beckwith, Bridgeport, Conn., for General Dynamics.

Before SMITH, Circuit Judge, and CLARIE and BLUMENFELD, District Judges.

MEMORANDUM OF DECISION

J. JOSEPH SMITH, Circuit Judge:

Anthony DeGregory is President of the Metal Trades Council of New London County, AFL-CIO ("the Council"). Invoking our jurisdiction under 28 U.S.C. § 1343, he seeks a declaratory judgment that Conn. Gen.Stat.Ann. § 31-120 is unconstitutional and a permanent injunction enjoining Timothy Giesing, Chief of Police of the City of Groton, from arresting him or any other members of the Council for violating § 31-120.

The Governor of Connecticut was granted permission to intervene as a defendant. Following the convening of a three-judge court, pursuant to 28 U.S.C. §§ 2281 and 2284, a hearing was held. The parties having agreed on a stipulation of facts, this case is now ripe for decision. We hold that § 31-120 does not violate either the first or fourteenth amendment of the U.S. Constitution. We deny plaintiff's motion for an injunction and dismiss the action.

I.

In August, 1975 Jinx Kessel and some other employees of the Electric Boat Division of General Dynamics Corporation ("Electric Boat") crossed a picket line that the Council had established at Electric Boat's plant in Groton, Connecticut. On September 21, 1975 six members of the Council walked in a single file on the public sidewalk in front of Kessel's residence, carrying signs which said "Jinx Kessel is employed as a scab at Electric Boat, New London, during a strike we are waging to protect our jobs."

The Groton police arrested three of the persons picketing Kessel's residence for violating § 31-120. The picketing was conducted in a non-violent manner, traffic was not obstructed, and ingress and egress to the property was not blocked. Chief Giesing later told other members of the Council that they would be arrested if they picketed a private residence.

While the strike ended in November 1975, Kessel and other employees who did not strike received the same wage increase as those Electric Boat workers who were on strike, retroactive for those who did not strike. DeGregory's affidavit says that he and other members of the Council "intend to engage in this picketing activity until the union sic: management? retracts its offer of the retroactive pay increase to the nonstrikers." (Plaintiff's affidavit, ¶ 9.)

II.

DeGregory brings this action on his own behalf and on behalf of all other members of the Council. On this record the three arrested members of the Council are not entitled to an injunction against their own pending state court prosecutions. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). DeGregory and any other members of the Council, whose standing is predicated solely on threatened prosecution can, however, obtain a declaratory judgment from this court as to the validity of § 31-120. Doran v. Salem Inn, Inc., 422 U.S. 922, 930-931, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Allee v. Medrano, 416 U.S. 802, 828, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974) (Burger, C. J., concurring); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).

Since we reject DeGregory's challenges to § 31-120, we do not decide the precise dimensions of the class he seeks to represent.

III.

We turn now to DeGregory's constitutional challenge to the statute.¹ Conn. Gen.Stat.Ann. § 31-120, passed in 1947, says:

No person shall engage in picketing before or about the home or residence of any individual unless such home or residence is adjacent to or in the same building or on the same premises in which such person was employed and which employment is involved in a labor dispute. Any person who violates the provisions of this section shall be fined not more than two hundred dollars or imprisoned not more than six months or both.

The only reported construction of this statute by a Connecticut court, State v. Anonymous, 6 Conn.Cir. 372, 274 A.2d 897 (Appellate Division 1971), holds that it prohibits labor, but not non-labor, picketing in residential areas. While we are not bound by this interpretation of § 31-120 by an intermediate appellate state court, we do consider it as an important datum for ascertaining state law. West v. American Telephone & Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940); Fidelity Union Trust Co. v. Field, 311 U.S. 169, 177-178, 61 S.Ct. 176, 85 L.Ed. 109 (1940). We agree that § 31-120 prohibits only labor picketing in residential areas.²

DeGregory concedes that he and other members of the Council wish to participate only in labor picketing in a residential area. He does not claim that either "labor dispute" or "home or residence" is unconstitutionally vague. Invoking Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) and Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), DeGregory argues that § 31-120 violates the first and fourteenth amendments because it impermissibly restricts one type of picketing "because of its message, its ideas, its subject matter, or its content." Mosley, supra, 408 U.S. 95, 92 S.Ct. at 2290. While this argument is appealing, in the final analysis it is unpersuasive.³

Even if we assume, arguendo, that sidewalks in residential areas are a public forum for the communication of ideas,⁴ "the speech of labor disputants, of course, is subject to a number of restrictions." Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763 n. 17, 96 S.Ct. 1817, 1826, 48 L.Ed.2d 346 (1976). Picketing by members of a labor union has been consistently viewed by the courts as being more than simply the expression of ideas.⁵

Picketing, even though "peaceful," involved more than just communication of ideas and could not be immune from all state regulation. . . . A State, in enforcing some public policy, whether of its criminal or its civil law . . . could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.

Teamsters Local 695 v. Vogt, Inc., 354 U.S. 284, 289, 293, 77 S.Ct. 1166, 1169, 1171, 1 L.Ed.2d 1347 (1957). American Radio Ass'n v. Mobile Steamship Ass'n, 419 U.S. 215, 229, 95 S.Ct. 409, 42 L.Ed.2d 399 (1974).

Section 31-120 does not prohibit labor picketing in a residential area when the locus of the labor dispute is also in the residential area. Cf. Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Connecticut can "set the limits of permissible contest open to industrial combatants." Id., at 104, 60 S.Ct. at 745. The Connecticut legislature could notice instances of violence involved in some labor picketing and conceivably prohibit all labor picketing — even if peaceful — in residential areas if the prohibition were necessary to serve an important interest of society. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 501, 69 S.Ct. 684, 93 L.Ed. 834 (1949). Privacy and quiet in a residential area are an important interest. Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). The Connecticut legislature could constitutionally pass a narrowly drawn statute restricting labor picketing in residential areas in order to prevent an intrusion "on the privacy of the home." Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975). Vogt, supra, 354 U.S. 295, 77 S.Ct. 1166; Thornhill, supra, 310 U.S. 105, 60 S.Ct. 736.⁶ Connecticut "may `direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed.'" Hughes v. Superior Court of California for Contra Costa County, 339 U.S. 460, 468, 70 S.Ct. 718, 723, 94 L.Ed. 985 (1950). It was open to the legislature to regulate labor picketing in residential areas and limit it to work sites, if the problem before it was limited to labor picketing. Other considerations might apply to other types of picketing approaching more closely to pure speech.

It might appear that the case at bar is governed by Police Department of the City of Chicago v. Mosley, supra, 408 U.S. at 92, 92 S.Ct. 2286, 33 L.Ed.2d 212. However, a careful reading of the Mosley opinion reveals that the present case is significantly different.

In Mosley, the Court invalidated on equal protection grounds a city ordinance which prohibited all picketing within 150 feet of a school, except for peaceful labor picketing. The Court found the central problem with the ordinance to be its description of permissible picketing in terms of the subject matter of that picketing. While there is some suggestion in the opinion that such subject matter distinctions are never permitted, other portions of the opinion indicate that such classifications are permissible if they are precisely tailored to serve a substantial governmental interest. This latter reading comports with traditional equal protection analysis, cf. William v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), and is...