Deida v. City of Milwaukee, 01-C-0324.

Citation192 F.Supp.2d 899
Decision Date25 March 2002
Docket NumberNo. 01-C-0324.,01-C-0324.
PartiesRosemary DEIDA, Plaintiff, v. CITY OF MILWAUKEE and Scott Mc Callum, Defendants.
CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin

Mathew D. Staver (Staver), for Plaintiff or Petitioner.

Thomas J. Balistreri (Balistreri), Rudolph M. Konrad (Konrad), for Defendant or Respondent.


ADELMAN, District Judge.


Plaintiff Rosemary Deida is a devout Christian who from time to time distributes religious literature to the public. She hands leaflets to people she sees on the street and in public buildings, and she sometimes places leaflets under the windshield wipers of parked cars. It is this last activity that led to the dispute in this case.

On December 20, 2000, she received a citation for violating a City of Milwaukee ordinance prohibiting leafleting on cars. Her citation stated that she had violated Milwaukee City Ordinance 101-3 "Adopting State Statute 346.94(4)" and was subject to a forfeiture of $158.00, which she paid. (R. 1 Ex. A.) Then she commenced the present action challenging, under the First Amendment, Wis. Stat. § 346.94(4) and the City ordinance adopting it and naming as defendants, Governor Scott McCallum and the City of Milwaukee. Plaintiff has since sought to amend her complaint to add other state officials as defendants. (I will refer to the Governor and the other state officials that plaintiff proposes to add as the "State Defendants.")

In order to understand the issue presently before me, it is necessary to briefly discuss the relationship between Wis. Stat. § 346.94(4) and the City ordinance adopting it, Milwaukee, Wis., Traffic Code § 101-3(1). Section 346.94(4) is a traffic law; and in Wisconsin, the state and local municipalities have a particular relationship with regard to traffic laws. In order to make traffic laws uniform, the state has enacted a comprehensive scheme of traffic regulations and "preempted the field." City of Janesville v. Walker, 50 Wis.2d 35 36, 183 N.W.2d 158 (1971). Thus, a municipality cannot pass a traffic law unless it is "expressly authorized by" and "strictly conform[s]" to state law. Town of East Troy v. A-1 Serv. Co., 196 Wis.2d 120, 130, 537 N.W.2d 126 (Ct.App.1995) (citing Wis. Stat. §§ 349.01, 349.06). A local ordinance "need not be a carbon copy of the state statute," but it cannot impose a higher penalty or prohibit more conduct than the state statute. Walker, 50 Wis.2d at 39, 183 N.W.2d 158. State law provides that a municipality will be deemed to have "strictly conform[ed]" if it incorporates the state laws by reference. Wis. Stat. § 349.06(2). Milwaukee, like many municipalities in Wisconsin, has taken this route and adopted the state's entire scheme of traffic regulation wholesale. Thus, the ordinance under which plaintiff was cited merely states: "The city of Milwaukee adopts ch. 346, Wis. Stats., 1969, and all subsequent amendments thereto defining and describing regulations with respect to vehicles and traffic for which the penalty is forfeiture only, including penalties to be imposed." Milwaukee, Wis., Traffic Code § 101-3(1). Under the Wisconsin system, state officials are authorized to enforce the state law, and local governments typically enforce their own identically-worded ordinances.

In the present case, although plaintiff raises the same First Amendment claim against the state law and the City ordinance, the responses of the State Defendants and the City to the lawsuit have diverged. The State chose not to defend the law's constitutionality, but rather argued that all state officials were immune from suit under the Eleventh Amendment. This position left the City to defend the merits of the law on its own.

On December 10, 2001, I rejected the City's arguments and found that plaintiff had a reasonable likelihood of showing that the ordinance was facially unconstitutional under the First Amendment because it restricted speech based on content and viewpoint and failed to satisfy strict scrutiny. Deida v. City of Milwaukee, 176 F.Supp.2d 859 (E.D.Wis.2001). I therefore preliminarily enjoined the City from enforcing the law. Id. Since then, the City has advised that it no longer wished to contest plaintiff's suit, and that it consented to the entry of a permanent injunction. Therefore, on March 18, 2002, I permanently enjoined the City from enforcing its ordinance. (R. 65.)

The only remaining issues are those concerning the State Defendants. Plaintiff has moved to add as defendants Wisconsin Attorney General James E. Doyle, Milwaukee County District Attorney E. Michael McCann, and Superintendent of the Wisconsin State Patrol Douglas L. Van Buren. The State Defendants have moved to dismiss plaintiff's claim against the Governor on the grounds that he is immune from suit under the Eleventh Amendment, and that there is no justiciable case or controversy under Article III. They also oppose the plaintiff's motions to add these other state officials as defendants on the ground that they would be similarly immune, and that the amendment would, therefore, be futile.


The State Defendants argue that I should dismiss plaintiff's original complaint for lack of subject matter jurisdiction and that I would have to dismiss her amended complaints for the same reason. A motion to amend should be denied if the proposed amended complaint could not survive a motion to dismiss. See Duda v. Bd. of Educ. of Franklin Park Public Sch. Dist. No. 84, 133 F.3d 1054, 1056-57, 1057 n. 4 (7th Cir.1998). Therefore, consideration of the motion to dismiss and the motions to amend requires analysis of the same issues and application of the same standard; and I will address the motions together.

In evaluating a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), I accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party. Am. Fed'n of Gov't Employees, Local 2119 v. Cohen, 171 F.3d 460, 465 (7th Cir.1999). I "presume[] that general factual allegations [in the complaint] embrace those specific facts necessary to support the claim," and I grant the motion only if relief would be impossible under any consistent set of facts. Id. (citations omitted).

I am not limited to reviewing only the pleadings. Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm'n, 149 F.3d 679, 685 (7th Cir.1998). When a defendant proffers evidence "that calls the court's jurisdiction into doubt[,] ... [t]he presumption of correctness that [I] accord to a complaint's allegations falls away." Id. At that point, the plaintiff must come forward with competent proof to support the allegations in its complaint. Id.

A. Justiciable Case or Controversy under Article III

"Those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy." Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 527 (7th Cir.2001) (quoting City of L.A. v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). To show an actual case or controversy, plaintiff must show both that she has standing to assert her particular claims and that it is an appropriate time for judicial intervention. Renne v. Geary, 501 U.S. 312, 320, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991). The State Defendants challenge both aspects of justiciability; they argue that plaintiff does not have standing and that her claim is not ripe for review.

To have standing to raise a claim, a plaintiff must allege that she has suffered (1) an "actual or imminent ... invasion of a legally protected interest" (2) caused by the defendant that (3) "a favorable decision is likely to redress." Tobin for Governor, 268 F.3d at 527 (citations omitted). The related doctrine of ripeness requires the court to "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Commodity Trend Serv., 149 F.3d at 687 n. 3 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). The plaintiff bears the burden of proving these elements and "must support each element in the same way as any other matter on which the plaintiff bears the burden of proof at that particular stage of the litigation." Alliant Energy Corp. v. Bie, 277 F.3d 916, 919 (7th Cir.2002). Thus, at the pleading stage, general factual allegations usually suffice Id.

In a facial pre-enforcement challenge to a statute based on the First Amendment, the standing and ripeness requirements are more relaxed than in other contexts. Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630, 634 (7th Cir.1990) ("`breathing room' . . . attaches to standing doctrine in the First Amendment context"); Pittman v. Cole, 267 F.3d 1269, 1283 (11th Cir.2001) ("injury requirement is most loosely applied—particularly in terms of how directly the injury must result from the challenged governmental action—where First Amendment rights are involved"); Ruocchio v. United Transp. Union, 181 F.3d 376, 385 (3d Cir.1999) ("[C]ourts have been expansive in their view of standing to bring legal action in situations in which free speech rights are implicated."); ACLU v. Johnson, 194 F.3d 1149, 1154-55 (10th Cir.1999) ("[R]ipeness requirements ... are somewhat more relaxed when First Amendment values are implicated"). The relaxed rules of justiciability are "justified by the overriding importance of maintaining a free and open market for the interchange of ideas," Young v. Am. Mini Theatres, 427 U.S. 50, 60, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), and by the far-reaching effects of a penal statute, the mere of existence of which can chill speech and thereby injure potential speakers and listeners, Virginia v. Am. Booksellers Ass'n, 484...

To continue reading

Request your trial
19 cases
  • Chances, Inc. v. Norton, CIV-S-01-0248 DFL GGH (E.D. Cal. 7/29/2002), CIV-S-01-0248 DFL GGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 29, 2002
    ...Culinary Workers Union, Local 226, 200 F.3d at 619 (applying Article III causation analysis to Young); Deida v. City of Milwaukee, 192 F. Supp.2d 899, 916-17 (E.D.Wis. 2002) (causal connection requirement under Young "closely overlap[s] with the causation and redressability inquiries for st......
  • Artichoke Joe's v. Norton, CIV.S-01-248-DFL-GGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 5, 2002
    ...Culinary Workers Union, Local 226, 200 F.3d at 619 (applying Article III causation analysis to Young); Deida v. City of Milwaukee, 192 F.Supp.2d 899, 916-17 (E.D.Wis.2002) (causal connection requirement under Young "closely overlap[s] with the causation and redressability inquiries for stan......
  • H.O.P.E., Inc. v. Eden Mgmt. LLC, Case No. 13-CV-7391
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 29, 2017 determine whether the official has a sufficient connection to enforcing the state law under Young. Deida v. City of Milwaukee, 192 F. Supp. 2d 899, 914 (E.D. Wis. 2002) (citing Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437, 441 (7th Cir. 1992). The complaint alleges enough to show......
  • Mishaga v. Schmitz, 10–cv–03187
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • September 30, 2015
    ...met. This "credible threat of prosecution" standard has been characterized as a "forgiving" one, see Deida v. City of Milwaukee, 192 F.Supp.2d 899, 906 (E.D.Wis.2002). Courts should find that a plaintiff has met her burden upon a showing that the government has "fail[ed] to indicate affirma......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT