Doe v. Duling

• Decision Date: 07 February 1986
• Docket Number: No. 85-1326,85-1326
• Citation: 782 F.2d 1202
• Parties: James DOE and Jane Doe, Appellees, v. Frank S. DULING, Chief of the Richmond Bureau of Police, and Aubrey M. Davis, Jr., Commonwealth's Attorney for the City of Richmond, Appellants. The Assembly of God--Potomac District Council, et al., Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1202

782 F.2d 1202

54 USLW 2455

James DOE and Jane Doe, Appellees, v. Frank S. DULING, Chief of the Richmond Bureau of Police, and Aubrey M. Davis, Jr., Commonwealth's Attorney for the City of Richmond, Appellants The Assembly of God--Potomac District Council, et al., Amicus Curiae.

No. 85-1326.

United States Court of Appeals Fourth Circuit.

Argued Oct. 10, 1985.

Decided Feb. 7, 1986.

Michael L. Sarahan, Asst. City Atty., and Mark R. Davis, Asst. Atty. Gen., Richmond, Va., (Gerald L. Baliles, Atty. Gen. of Va., William G. Broaddus, Atty. Gen. of Va., Linwood T. Wells, Jr., Asst. Atty. Gen., Richmond, Va., on brief) for appellants.

Michael Morchower (Morchower, Luxton & Whaley, Richmond, Va., on brief), for appellees.

(Christopher A. Meyer, Susan G. Oliver, H. Elizabeth Shaffer, Dr. Gary Leedes, Richmond, Va., on brief) for amici curiae.

Before SPROUSE and WILKINSON, Circuit Judges, and BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation.

WILKINSON, Circuit Judge:

Plaintiffs brought suit under the pseudonyms Jane Doe and James Doe challenging the constitutionality of Virginia statutes prohibiting fornication and cohabitation. Va.Code Secs. 18.2-344, 18.2-345 (1982). The district court granted both injunctive and declaratory relief on the grounds that these statutes violated plaintiffs' rights to privacy. Doe v. Duling, 603 F.Supp. 960 (E.D.Va.1985). Plaintiffs, however, failed to show even a remote chance that they are threatened with prosecution under these provisions. To adjudge this fanciful dispute would undermine the proper role of federal courts in our system of government and usurp the position of state courts and legislatures as primary arbiters of state law. We therefore vacate the judgment of the court below and remand with directions to dismiss for want of a justiciable case or controversy. We express no view on the merits of the constitutional questions addressed by the district court.

I.

Plaintiffs (appellees in this action) are unmarried adults who maintain separate residences in the City of Richmond. In depositions, affidavits, and stipulations of fact, they state that they have engaged in sexual intercourse in the city with unmarried members of the opposite sex. Jane Doe further alleges that she has engaged in unlawful cohabitation. The Does believe that fornication and cohabitation are "common forms of conduct in society generally and in the City of Richmond in particular" and that an arrest for such activity could cause them "considerable personal embarrassment" and affect professional standing. Though neither has ever been arrested or threatened with arrest for violation of these statutes, the Does maintain that each has abstained from sexual intercourse and cohabitation since they learned of the laws in question for fear of prosecution. Finally, each expresses a desire to engage in private, consensual heterosexual activity free from government intrusion.

Virginia has prohibited fornication since at least 1819. See 1 Revised Code, Ch. 142, Sec. 5 (1819). The current code provides that "[a]ny person, not being married, who voluntarily shall have sexual intercourse with any other person shall be guilty of fornication," Va.Code Sec. 18.2-344 (1982). The last reported conviction for fornication in Virginia was in 1849. See Commonwealth v. Lafferty, 47 Va. 874 (6 Gratt.) (1849).

Cohabitation is prohibited under Sec. 18.2-345 of the current code: "If any persons, not married to each other, lewdly and lasciviously associate and cohabit together, or whether married or not, be guilty of open and gross lewdness and lasciviousness, each of them shall be guilty of a ... misdemeanor." This section contains two distinct prohibitions, the second of which involves open and conspicuous lewd behavior. See Everett v. Commonwealth, 214 Va. 325, 200 S.E.2d 564 (1973). The cohabitation offense presumably requires no such openness. Virginia has maintained its statutory prohibition on cohabitation for well over 100 years. See Va.Code, Tit. 54, Ch. 196, Sec. 7 (1860). The last recorded conviction for private, consensual cohabitation occurred in 1883. See Scott v. Commonwealth, 77 Va. 344 (1883).

The Does introduced depositions of police officers and arrest records that purportedly reveal a pattern of current enforcement on which their fears of prosecution are grounded. Four current or former members of the Richmond vice division testified in general terms that all laws are enforced and specifically stated that they would investigate complaints of fornication and cohabitation if time and personnel limitations allowed. None of the officers, however, recalled any arrests for fornication in a private, consensual setting except for those involving prostitution. Lieutenant John Carlson, for example, was head of the vice division during the depositions and testified that all fornication arrests he recalled in the last five years were prostitution-related. Officer William C. Bailey, involved in more than thirty fornication arrests, stated that nearly all were prostitution-related and none involved activity in a private home. None of the officers recalled a cohabitation arrest since 1976. Carlson stated his belief that cohabitation had to involve open sexual conduct before it fell within the prohibitions of the statute.

The arrest records entered into evidence bear this testimony out. The parties stipulated that none of these arrests involved fornication in a private residence. To the extent the record discloses the circumstances of these arrests, it shows that all involved public conduct. Two arrests, for example, were of individuals in a car; three arrests occurred in a public park. ¹

The district court first considered the question of justiciability. The court found that the Does had standing because the challenged statutes apply expressly to them. Doe v. Duling, 603 F.Supp. at 964. Recognizing that there must be "a threat of prosecution sufficient to make this controversy ripe for review," id., the court held that the general policy of enforcing criminal laws, coupled with recent enforcement of the challenged statutes, established a credible threat, making the case ripe for review. On the merits, the court found that "the constitutional right to privacy extends to a single adult's decision whether to engage in sexual intercourse." Id. at 967. Finding no compelling state interest, it struck down the fornication statute and that portion of Sec. 18.2-345 prohibiting cohabitation. It found the prohibition in Sec. 18.2-345 of "open and gross lewdness and lasciviousness" within the state's proper sphere of regulation.

II.

Federal courts are principally deciders of disputes, not oracular authorities. We address particular "cases" or "controversies," U.S. Const., Art. III, Sec. 2, and may not arbitrate abstract differences of opinion. O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). The case or controversy requirement maintains proper separation of powers between courts and legislatures, provides courts with arguments sharpened by the adversarial process, and narrows the scope of judicial scrutiny to specific facts. Where state criminal statutes are challenged, the requirement protects federalism by allowing the states to control the application of their own criminal laws.

The Supreme Court has made it abundantly clear that one challenging the validity of a criminal statute must show a threat of prosecution under the statute to present a case or controversy. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298-99, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979); Wooley v. Maynard, 430 U.S. 705, 711-12, 97 S.Ct. 1428, 1433-34, 51 L.Ed.2d 752 (1977); Ellis v. Dyson, 421 U.S. 426, 433, 95 S.Ct. 1691, 1695, 44 L.Ed.2d 274 (1975); Steffel v. Thompson, 415 U.S. 452, 458-60, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974); Younger v. Harris, 401 U.S. 37, 41-42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971). ² The threat must be "credible," Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308, and "alive at each stage of the litigation." Ellis, 421 U.S. at 435, 95 S.Ct. at 1696. The Court has noted, however, that "persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs." Younger, 401 U.S. at 42, 91 S.Ct. at 749. A litigant must show more than the fact that state officials stand ready to perform their general duty to enforce laws, Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 1752, 1754, 6 L.Ed.2d 989 (1961); Watson v. Buck, 313 U.S. 387, 399, 61 S.Ct. 962, 966, 85 L.Ed. 1416 (1941). Even past threats of prosecution may not be sufficient to establish a controversy susceptible of resolution in federal court. See, e.g., Ellis, 421 U.S. 426, 95 S.Ct. 1691. In short, one must show a threat of prosecution that is both real and immediate, Golden v. Zwickler, 394 U.S. 103, 109-10, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969), before a federal court may examine the validity of a criminal statute.

The record in this case establishes that the Does face only the most theoretical threat of prosecution. As noted by the district court, plaintiffs seek to determine "whether the State, consistent with the Constitution, may restrict the non-prostitutional, heterosexual activities of two unmarried, consenting adults when such activities occur in the privacy of one's home." Doe v. Duling, 603 F.Supp. at 966. Recorded cases reveal that the application of the statutes to such activity is, at most, a matter of historical curiosity. Attempts to update that history by showing recent arrest records were equally unavailing, for not one arrest has been shown to involve the behavior at issue in this case. Arrests for fornication and cohabitation arose instead from prostitutional or non-private behavior, not at issue here. The parties in fact stipulated that no arrests in evidence...