Deida v. City of Milwaukee

• Decision Date: 10 December 2001
• Docket Number: No. 01-C-0324.,01-C-0324.
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Rosemary DEIDA, Plaintiff, v. CITY OF MILWAUKEE and Scott Mc Callum, Defendants.

176 F.Supp.2d 859

Rosemary DEIDA, Plaintiff, v. CITY OF MILWAUKEE and Scott Mc Callum, Defendants.

No. 01-C-0324.

United States District Court, E.D. Wisconsin.

December 10, 2001.

COPYRIGHT MATERIAL OMITTED

Mathew D. Staver, Erik W. Stanley, Joel L. Oster, Liberty Counsel, Longwood, FL, for Rosemary Deida.

Rudolph M. Konrad, Stuart Mukamal, Milwaukee City Attorney's Office, Milwaukee, WI, Thomas J. Balistreri, Wisconsin Department of Justice, Office of the Attorney General, Madison, WI, for Milwaukee, City of, Governor, State of Wisconsin, Scott McCallum, in his official capacity as Governor of the State of WI, James E. Doyle, Milwaukee County, E. Michael McCann, Douglas L. Van Buren.

DECISION AND ORDER

ADELMAN, District Judge.

Plaintiff, Rosemary Deida, brings this action against the Governor of Wisconsin and the City of Milwaukee ("City") under 42 U.S.C. § 1983 challenging under the First and Fourteenth Amendments to the United States Constitution a state statute and an identically worded city ordinance which prohibit placing pamphlets on vehicles and seeking declaratory and injunctive relief. Before me now are plaintiff's motion for a preliminary injunction against enforcement of the city ordinance and the City's motion to dismiss plaintiff's complaint.¹

I. FACTS

Plaintiff Rosemary Deida is a Christian with deeply held religious beliefs. She believes that it is important to tell others about the tenets of her faith and thus 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 the morning of December 20, 2000, plaintiff drove from her home in Milwaukee, Wisconsin to City Hall. She parked her car on North Market Street, a public street adjacent to City Hall. As she walked toward City Hall, she passed out leaflets to passersby. She continued to distribute them inside City Hall. As she walked back to her car, she placed a leaflet under the windshield wiper of each car she passed on North Market Street. She saw Officer Walter Tyshynsky exiting City Hall and "felt led" to give him a leaflet also. (Compl.¶ 22.) Officer Tyshynsky responded by saying that he intended to cite her for violating a city ordinance that prohibits placing pamphlets on cars. Plaintiff told him that she "felt people needed to hear the message contained in the tracts and that she was just trying to let people know about God and that this was her way of doing so." (Compl.¶ 26.) She then asked for his name and badge number so that she could pray for him.

As luck would have it, Office Tyshynsky had run out of citation forms, so he wrote plaintiff's name and identifying information from her driver's license on the leaflet she had given him. He told her to remove the leaflets from the cars on North Market Street. Plaintiff refused and continued to distribute leaflets to passersby.

The next day, Officer Tyshynsky delivered a citation to plaintiff at her house. The citation stated that she had violated Milwaukee City Ordinance 101-3 "Adopting State Statute 469.94(4)" and was subject to a forfeiture of $158.00. (Compl.Ex. A.) On January 26, 2001, plaintiff paid the forfeiture. Since then, she has on some occasions placed religious leaflets on cars but at other times has refrained from doing so for fear of receiving additional citations.

In Wisconsin, city traffic ordinances must be "expressly authorized by" state statute and must "strict[ly] conform[]" to the state statutes addressing the same matters. Town of East Troy v. A-1 Serv. Co., Inc., 196 Wis.2d 120, 130, 537 N.W.2d 126 (Wis.Ct.App.1995). In order to comply with these requirements, the City has simply adopted Chapter 346 of the Wisconsin Statutes.² Milwaukee, Wis., Traffic Code § 101-3(1). Chapter 346 entitled "Rules of the Road" governs conduct on "highways," defined as "all public roads and thoroughfares." Wis. Stat. §§ 346.01, 340.01(22).

The ordinance under which plaintiff was cited derives from a provision in Chapter 346 which states,

Missiles, circulars or pamphlets. No person shall throw any missile, circular or pamphlet at the occupants of any vehicle or throw or place any missile, circular or pamphlet in or on any vehicle, whether or not the vehicle is occupied. This subsection does not apply to any person who places on a vehicle educational material relating to the parking privileges of physically disabled persons if the person has a good faith belief that the vehicle is violating state or local law on parking for motor vehicles used by the physically disabled and the educational material has been approved by the council on physical disabilities as provided under s. 46.29(1)(em).

Id. § 346.94(4). Violators are subject to forfeiture of "not less than $20 nor more than $400." Id. § 346.95(2).

According to the City, the ordinance serves several purposes, including the protection of private property, the reduction of litter and visual clutter and driver and pedestrian safety.

II. JUSTICIABILITY: STANDING AND RIPENESS

The City has not questioned whether plaintiff has raised a justiciable case or controversy. Nevertheless, "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 Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)).

Standing and ripeness are essential aspects of justiciability. To have standing to raise a claim, a plaintiff must demonstrate 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." Id. (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., Inc. v. Commodity Futures Trading Comm'n, 149 F.3d 679, 687 n. 3 (7th Cir. 1998) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)).

When a plaintiff raises a First Amendment challenge to a statute imposing penalties, she can satisfy both the first prong of the standing test and the ripeness requirement by establishing the elements outlined in Babbitt v. Farm Workers Nat'l Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). Commodity Trend Serv., 149 F.3d at 687 n. 3. Babbitt provides a more relaxed injury and ripeness standard in the First Amendment context where a law's mere existence can chill speech even before the law is actually enforced. Pittman v. Cole, 267 F.3d 1269, 1283 (11th Cir.2001).³ Under Babbitt, a plaintiff does not have to expose herself to actual prosecution to show injury. Commodity Trend Serv., 149 F.3d at 687 (quoting Babbitt, 442 U.S. at 298, 99 S.Ct. 2301) (internal quotation marks omitted). She need only allege that she intends to engage in arguably constitutionally protected conduct proscribed by the statute and demonstrate that by engaging in such conduct, she would face "a credible threat of prosecution." Id. "[A] threat of prosecution is credible when a plaintiff's intended conduct runs afoul of a criminal statute and the government fails to indicate affirmatively that it will not enforce the statute." Id. (emphasis in original) (citing Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988)).

Plaintiff handily meets the standing and ripeness requirements. She alleges that she wishes to leaflet cars, but at times has refrained from doing so for fear of being cited. At other times she has engaged in leafleting despite her fear. Leafleting is a form of speech arguably protected by the Free Speech Clause of the First Amendment. Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 87 L.Ed. 1313 (1943). Finally, she faces a credible threat of prosecution because the City has not disavowed the ordinance; indeed the City has already cited her once for violating it. Therefore, plaintiff meets the injury requirement necessary to demonstrate standing and ripeness. Plaintiff satisfies the second prong of the standing test because the City's enactment and enforcement of the ordinance has caused her to refrain from speaking and to speak only at the risk of prosecution. Finally, she establishes the third prong because an injunction preventing the City from enforcing the ordinance would enable her to leaflet without fear, eliminating any unjustified chill. Plaintiff, therefore, has standing to challenge the city ordinance, and her claim is ripe for judicial review.

III. REQUIREMENTS FOR A PRELIMINARY INJUNCTION

To obtain a preliminary injunction, plaintiff must show: (1) a reasonable likelihood of success on the merits; (2) that she has no adequate remedy at law; (3) that she will suffer irreparable harm if an injunction does not issue; (4) that the threatened injury she faces outweighs the injury defendant will suffer if the injunction is granted; and (5) that an injunction is in the public interest. JAK Prods., Inc. v. Wiza, 986 F.2d 1080, 1084 (7th Cir.1993). "Although in theory these elements are distinct, in the First Amendment context they essentially reduce to the question of whether plaintiff is likely to succeed on the merits." Wil-Kar, Inc. v. Vill. of Germantown, 153 F.Supp.2d 982, 987 (E.D.Wis. 2001). As stated in Wil-Kar, "[t]his is because the loss of First Amendment freedoms is presumed to constitute irreparable harm, and irreparable injury establishes that there is no adequate remedy at law. Further, because governmental compliance with the First Amendment always serves the common good,...