Dorman v. Satti

• Decision Date: 07 December 1988
• Docket Number: No. 87,D,87
• Citation: 862 F.2d 432
• Parties: Francelle DORMAN, Plaintiff-Appellee, v. C. Robert SATTI and Lester J. Forst, Defendants-Appellants. ocket 88-7390.
• Court: U.S. Court of Appeals — Second Circuit

Page 432

862 F.2d 432

Francelle DORMAN, Plaintiff-Appellee, v. C. Robert SATTI and Lester J. Forst, Defendants-Appellants.

No. 87, Docket 88-7390.

United States Court of Appeals, Second Circuit.

Argued Sept. 28, 1988.

Decided Dec. 7, 1988.

Kathleen Eldergill, Manchester, Conn. (Beck & Eldergill, Manchester, Conn., of counsel), for plaintiff-appellee.

Harry Weller, Deputy Asst. State's Atty., Wallingford, Conn. (Joseph I. Lieberman, Atty. Gen., State of Conn., L.D. McCallum, Asst. Atty. Gen., Wallingford, Conn., of counsel), for defendants-appellants.

Before OAKES, MINER and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

In 1985, the Connecticut legislature enacted, as part of the state's penal code, the Hunter Harassment Act which provides as follows:

No person shall: (1) Interfere with the lawful taking of wildlife by another person, or acts in preparation for such taking, with intent to prevent such taking; or (2) harass another person who is engaged in the lawful taking of wildlife or acts in preparation for such taking.

Conn.Gen.Stat. Sec. 53a-183a (emphasis added). The Act, a class C misdemeanor, subjects the offender to a fine and/or imprisonment for up to three months. Id. Secs. 53a-28; 53a-36(3).

On this appeal from the United States District Court for the District of Connecticut (Nevas, J.), we are asked to decide 1) as a preliminary matter, whether we should certify the statutory terms "interfere," "harass," and "acts in preparation" to the Connecticut Supreme Court for definitive

interpretation under state law, and 2) assuming instead that we reach the merits, whether the district court properly determined that the Act, on its face, is unconstitutionally vague and overbroad under the freedom of speech clause of the first amendment. For the reasons that follow, we deny defendants-appellants' motion to certify questions of state law to the Connecticut Supreme Court and affirm the judgment of the district court granting plaintiff-appellee's motion for summary judgment declaring the Act unconstitutional on its face.

BACKGROUND

On January 30, 1986, plaintiff-appellee Francelle Dorman, a resident of Niantic, Connecticut, was arrested during the goosehunting season for speaking to several hunters on state forest property located near her home. The adjoining state lands contain marshland inhabited by a variety of waterfowl. Plaintiff is morally opposed to the hunting and killing of animals, and consequently on the day of her arrest, she approached several hunters in the marsh and attempted to dissuade them from their plans to hunt the waterfowl. By her own admission, Dorman "walked with the hunters ..., [and] spoke to them about the violence and cruelty of hunting, of the beauty of the waterfowl and [of] their right to live peacefully and without harm." The hunters regarded her behavior as "antics," advised plaintiff that her actions were unlawful, and when she refused to leave, summoned a state law enforcement officer who arrested her for violating the Hunter Harassment Act, Conn.Gen.Stat. Sec. 53a-183a (the "Act").

Following her arrest, the state prosecutor requested that the court dismiss the criminal charges, apparently conceding that the arrest of Dorman had been premature since she had only been "talking about what she was going to do to interfere with hunting geese." On April 22, 1986, the court granted the state's request and dismissed the criminal charges.

Four months later, Dorman filed the instant action in the district court under 42 U.S.C. Sec. 1983 against defendants-appellants C. Robert Satti, chief prosecutor, and Lester J. Forst, the Commissioner of Public Safety. Plaintiff alleged, inter alia, that the actual arrest and the threat of future enforcement of the Act violated her rights under the first and fourteenth amendments, and she sought a judgment declaring the Act facially invalid and injunctive relief prohibiting the Act's enforcement. On cross-motions for summary judgment, the district court granted plaintiff's motion, holding as a matter of law that the Act, as written, is unconstitutionally vague and overbroad. Dorman v. Satti, 678 F.Supp. 375 (D.Conn.1988). In May 1988, defendants filed a timely notice of appeal on the merits as well as a motion in this court under Second Circuit rule Sec. 0.27 seeking certification to the Connecticut Supreme Court of the statutory terms "interfere," "harass," and "acts in preparation."

DISCUSSION

I. Certification.

Second Circuit rule 0.27 provides that certification to the highest court of a state is appropriate 1) "[w]here authorized by state law" and 2) in order to resolve an "unsettled and significant question of state law that will control the outcome of a case pending before this Court." The Connecticut certification statute adopted in 1985 provides, inter alia, that a "court of appeals of the United States" may certify "questions of law ... which may be determinative of the cause then pending ... and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of th[e] state." Conn.Gen.Stat. Sec. 51-199a(b).

The United States Supreme Court has encouraged the use of state certification procedures as an alternative to "the more cumbersome and ... problematic abstention doctrine." See Virginia v. American Booksellers Ass'n, Inc., --- U.S. ----, 108 S.Ct. 636, 644, 98 L.Ed.2d 782 (1988). The purpose of certification is to obtain the benefit of an authoritative construction from the state's highest court before proceeding to the merits of the dispute. This The test for determining the appropriateness of employing the certification procedure is whether the statute in question is "readily susceptible" to the proffered narrowing construction that would render an otherwise unconstitutional statute constitutional. See American Booksellers, 108 S.Ct. at 645; Bellotti v. Baird, 428 U.S. 132, 148, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976); Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975); Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). In attempting to satisfy the "readily susceptible" standard, defendants in the instant case rely by analogy on the Connecticut Supreme Court's recent consideration of vagueness and overbreadth challenges to the state's criminal interference with a police officer statute, Conn.Gen.Stat. Sec. 53a-167a. See State v. Williams, 205 Conn. 456, 534 A.2d 230 (1987). That statute provides that it is unlawful to "interfer[e]," i.e., to "obstruct[ ], resist[ ], hinder[ ] or endanger[ ]," a police officer "in the performance of his duties." In Williams, the Connecticut Supreme Court held that the statute was not unconstitutionally overbroad or vague because the act defines the term "interfer[e]" and limits its reach to conduct "intended to obstruct the police in the performance of their duties." Id., 534 A.2d at 238. According to the Williams court, "a reasonable interpretation of the statute confines its scope to conduct that amounts to meddling in or hampering the activities of the police in the performance of their duties." Id. The court distinguished the Connecticut statute from the ordinance struck down by the United States Supreme Court in Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), which prohibited interfering with a police officer " 'in any manner ... in the execution of his duty,' " 107 S.Ct. at 2506 (emphasis added), by finding that the Connecticut statute did not contain such a "broad sweep" of language. 534 A.2d at 238.

                may further the interests of federal/state comity by providing the state court with the opportunity to rule on an issue of state law before being precluded from doing so by a contrary federal court judgment.  The state court's interest in accepting a certified question for review is particularly strong when it has not yet had the opportunity to interpret the pertinent statutory language.  Id., 108 S.Ct. at 645.    Nevertheless, issues of state law "are not to be routinely certified to the highest courts of New York or Connecticut simply because a certification procedure is available.  The procedure must not be a device for shifting the burdens of this Court to those whose burdens are at least as great."    Kidney v. Kolmar Laboratories, Inc., 808 F.2d 955, 957 (2d Cir.1987)
                

In construing the Connecticut statute to proscribe only physical conduct and "fighting" words, Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942), the court in Williams was able to fit the statute within the constitutional parameters of free speech. Defendant contends that the Connecticut Supreme Court should be given a similar opportunity to narrowly construe the Hunter Harassment Act. We disagree.

For this court to certify a question to the Connecticut Supreme Court, the Hunter Harassment Act must be "readily susceptible" to limiting interpretation. The district court found that the statute was "not susceptible to curative construction." 678 F.Supp. at 384. Although we are not bound by the district court's ruling, Boos v. Barry, --- U.S. ----, 108 S.Ct. 1157, 1162-63, 99 L.Ed.2d 333 (1988); American Booksellers, 108 S.Ct. at 643-44; Elkins v. Moreno, 435 U.S. 647, 662 n. 16, 98 S.Ct. 1338, 1347 n. 16, 55 L.Ed.2d 614 (1978), we agree with its determination. As Judge Nevas noted,

[t]he lesson of Williams does not apply to the Hunter Harassment Act. First, because the Act fails to define the nature of the interference it proscribes, its language implicitly sweeps as broadly as that of the Houston ordinance, and it thus cannot be saved by a limiting construction as was Section 53a-167a. Second, in failing--by virtue of its "acts in 678 F.Supp. at 381-82.

preparation" clause--to limit the proscribed interference as to time and place, the Act carries its effect far beyond the proper scope of government...