Duffy v. Quattrocchi

• Decision Date: 05 December 1983
• Docket Number: C.A. No. 79-0645 S.
• Citation: 576 F. Supp. 336
• Parties: Reverend Bernard DUFFY and Irwin Becker, Plaintiffs, v. Rocco A. QUATTROCCHI, et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

576 F. Supp. 336

Reverend Bernard DUFFY and Irwin Becker, Plaintiffs, v. Rocco A. QUATTROCCHI, et al., Defendants.

C.A. No. 79-0645 S.

United States District Court, D. Rhode Island.

December 5, 1983.

O'Brien & Newton by Mortimer C. Newton, Providence, R.I., for plaintiffs.

Dennis J. Roberts II, Atty. Gen. by Alan R. Tate, Asst. Atty. Gen., Joseph Dugan, Sp. Asst. Atty. Gen., Providence, R.I., for defendants.

OPINION AND ORDER

SELYA, District Judge.

I.

This action was instituted on December 7, 1979 by the plaintiffs, Bernard Duffy and Irwin Becker, against some fourteen members of the Rhode Island State Senate and against Captain John R. Devine, an officer of the Rhode Island State Police. Jurisdiction is premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3).

In essence, the suit challenges the validity of an edict informally promulgated by three members of the leadership of the state senate barring the presence of signage at a legislative public hearing held on May 3, 1979. In their complaint, the plaintiffs prayed for certification of a class comprised of all Rhode Island registered voters; and sought declaratory and injunctive redress, money damages, counsel fees and costs. The gravamen of the action has at all times been the contention that the ad hoc rule abridged the rights of citizens, including the plaintiffs, under the First and Fourteenth Amendments to the United States Constitution.

The procedural posture of the case has, however, changed markedly since its inception. On January 15, 1980 all of the defendants, save only Devine, moved for dismissal of the action on the ground of legislative immunity. The plaintiffs did not object. Accordingly, in pursuance of Local Rule 12(a)(2) of this court, the motion was granted on February 1, 1980. Devine, then and now the sole defendant remaining before the court, answered the complaint. After other proceedings not relevant for purposes of this opinion, Devine moved under Fed.R.Civ.P. 56 for partial summary judgment. That motion was eventually withdrawn at a chambers conference on June 29, 1983, and trial by jury was waived at the same time. See footnote consent order dated June 29, 1983 (the "June 29 Order"). The parties agreed in principle on that date to submit the cause for decision on the basis of the facts as revealed by numerous depositions. A briefing schedule was established.

On August 10, 1983, well into the briefing schedule and more than three and onehalf years after suit was brought, Duffy and Becker for the first time moved to secure certification of the class. No explanation was proffered for the lengthy delay. Devine objected. On September 13, 1983, the court, in a memorandum order, denied the motion on the ground, inter alia, that it had been presented substantially out of time. See Local Rule 30(c). The briefing schedule ran its course, and a hearing was held on November 18, 1983.

At that time, the court, noting that the plaintiffs' written submissions had addressed themselves exclusively to the claims for declaratory and injunctive relief, put squarely to counsel the question of the status of the original prayer for monetary redress. Counsel stated unequivocally that the claim for money damages was waived, and that the plaintiffs, presently, sought only a declaration of rights, a restraining order prohibiting future enforcement of the ad hoc rule, and ancillary relief in the nature of attorneys' fees and costs. See 42 U.S.C. § 1988. The court thereupon proceeded to raise, sua sponte, considerations of mootness; and, at the conclusion of the hearing, the parties were accorded the right to submit supplemental memoranda. These having been filed, the cause is now in order for decision.

II.

The 1979 session of the Rhode Island General Assembly devoted substantial time to the consideration of consumer-oriented legislation — an agenda which attracted a rather passionate constituency. The testimony reflects that the session was marked by picketing, sit-ins and kindred activity. On upwards of five occasions during the first four months of the year, state police were summoned to the State House to maintain crowd control. As April wound to a close, the state senate was on the verge of taking up seven of these consumer proposals. There is evidence that, at previous hearings held on some of these very bills in the house of representatives, crowds had materialized and boisterous conduct had ensued.

Inasmuch as the legislative session was drawing to a close,¹ and the seven bills in question were before three disparate senate committees (Finance, Corporations, Judiciary), the senate leadership opted to hold an agglomerate public hearing anent the proposed legislation. Because of the large number of people expected to attend, the Bishop McVinney Auditorium was leased from the Diocese of Providence for this purpose. This facility, located in relatively close proximity to the State House, affords comfortable spectator seating for a minimum of seven hundred fifty adults; it had been used by the General Assembly in the past under comparable circumstances. May 3, 1979 was the date designated for the public hearing.

The chairmen of the three affected senate committees, Senators Castro, McKenna and Quattrocchi, met in late April of 1979, acting as an ad hoc rules committee. Quattrocchi was, at the time, not only the chair of the Judiciary Committee, but was the incumbent senate majority leader; as such, he was de facto the senate's most powerful figure.² This threesome arranged for security to be furnished by the state police and decided, inter alia, to exclude all posters and signs from the upcoming hearing. The ban was, in effect, affirmed during the opening minutes of the May 3 hearing by a vote of the senators there in attendance.

Approximately three hundred people attended the hearing, including some twenty-five members of the General Assembly. The latter were seated on a stage facing the audience. A podium, equipped with a microphone, was set up in the amphitheater to permit attendees to address the assembled public officials. An individual could take advantage of that opportunity by submitting his/her name to one of the senate clerks stationed in the lobby. Plaintiff Duffy complied with this procedure and was allowed to express his views on the proposed legislation in this fashion.

After he had testified, Duffy left the hall. He thereafter attempted to re-enter several times with posters in hand, but was prohibited from doing so by defendant Devine. Duffy was ultimately arrested and charged with obstructing a police officer during the course of his duty and with assaulting a police officer. In a subsequent jury trial, Duffy was convicted of the former charge, but acquitted of the assault. The conviction was affirmed on appeal. See State v. Duffy, 441 A.2d 524 (R.I.1982). A state trooper, unidentified on this record, also stopped plaintiff Becker when he tried to enter the hearing room with signage in tow. The record is barren of any evidence that the procedures which were employed at the May 3, 1979 hearing have been enforced—before or since—by the state senate or by any of its committees. And, Senator Castro testified in his deposition that the proscription against signs was an idiosyncratic response to the perceived problems ancillary to the May 3, 1979 hearing.

III.

The First and Fourteenth Amendments guarantee that no state may abridge freedom of speech. These amendments remove "governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity...." Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 reh'g denied, 404 U.S. 876, 92 S.Ct. 26, 30 L.Ed.2d 124 (1971). It is well settled, however, that the First Amendment does not guarantee the right to communicate one's views at all times and places or in any conceivable manner. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981); Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976); Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966), reh'g denied, 385 U.S. 1020, 87 S.Ct. 698, 17 L.Ed.2d 559 (1967). In that the auditorium was, on May 3, 1979, plainly a public forum,³Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963), the state could enforce reasonable time, place, and manner regulations on expressive conduct as long as the restrictions were "content-neutral, ... narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." United States v. Grace, ___ U.S. ___, ___, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983) (quoting Perry Education Association v. Perry Local Educators' Association, ___ U.S. ___, ___, 103 S.Ct. 948, 953, 74 L.Ed.2d 794 (1983)).

The plaintiffs seek, in effect, to have this court apply the Grace yardstick to ascertain the vitality of the ad hoc regulation in the face of a First Amendment challenge.

IV.

The law is clear, however, that in order to declare the rights of any individual, a federal court must be vested with jurisdiction over the subject matter of the suit and may only pass upon concrete "cases or controversies" properly before it. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982); United States Parole Commission v. Geraghty, 445 U.S. 388, 395, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). Furthermore, the court must determine whether such jurisdiction exists even if the issue is not raised by any party to the litigation. Escobedo v. Estelle, 655 F.2d 613, 614 (5th Cir.1981). One of the critical prerequisites to a finding...