FOCUS v. Allegheny County Court of Common Pleas

• Decision Date: 01 February 1996
• Docket Number: No. 95-3014,95-3014
• Citation: 75 F.3d 834
• Parties: FOCUS, (For Our Children's Ultimate Safety), a citizens' advocacy group; Jacqueline Colville; Catherine Silvio, Appellants, v. ALLEGHENY COUNTY COURT OF COMMON PLEAS, Family Division, Juvenile Section; Honorable Joseph Jaffe.
• Court: U.S. Court of Appeals — Third Circuit

Page 834

75 F.3d 834

64 USLW 2516

FOCUS, (For Our Children's Ultimate Safety), a citizens' advocacy group; Jacqueline Colville; Catherine Silvio, Appellants, v. ALLEGHENY COUNTY COURT OF COMMON PLEAS, Family Division Juvenile Section; Honorable Joseph Jaffe.

No. 95-3014.

United States Court of Appeals Third Circuit.

Argued April 18, 1995.

Decided Feb. 1, 1996.

On Appeal from the United States District Court for the Western District of Pennsylvania; (D.C.Civil Action No. 94-cv-02160).

Jon Pushinsky (Argued), Pittsburgh, PA, and Witold J. Walczak, American Civil Liberties Union, Greater Pittsburgh Chapter, Pittsburgh, PA, for Appellants FOCUS, Colville and Silvio.

David M. Donaldson (Argued), Administrative Office of PA Courts, Philadelphia, PA, for Appellees The Court of Common Pleas of Allegheny County and Honorable Joseph Jaffe.

Before: STAPLETON, HUTCHINSON ^* and SEITZ, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

A citizen's advocacy group, "For Our Children's Ultimate Safety" ("FOCUS"), and two of the group's members, Jacqueline Colville and Catherine Silvio (collectively, the "plaintiffs"), appeal from an order of the United States District Court for the Western District of Pennsylvania granting a motion to dismiss their 42 U.S.C. § 1983 claim against the Family Division of the Allegheny County Court of Common Pleas and a judge of that court. Their claim arises out of gag orders entered during a celebrated child custody case, In re Byron Griffin, No. 1608-92 (Pa.C.P. filed Aug. 21, 1992) (the "Baby Byron" case), currently pending before the court of common pleas. The gag orders prohibited the parties to that case from discussing the case with the public. FOCUS (but not the individual plaintiffs) attempted to intervene in the Baby Byron case, arguing that the gag orders violated its rights under the First Amendment.

In a quick series of events, (1) the court of common pleas rebuffed FOCUS' attempt to intervene, (2) the Pennsylvania Superior Court refused to entertain FOCUS' motion for a writ of mandamus, and (3) the Pennsylvania Supreme Court denied FOCUS' petition to exercise its King's Bench jurisdiction to declare the gag orders unconstitutional. FOCUS then joined forces with the two individual plaintiffs and filed this § 1983 suit in federal district court, alleging that the state court and its judge violated their First Amendment rights. The district court dismissed all claims against the state court on Eleventh Amendment grounds. It then dismissed the claims against the judge, holding that it did not have subject matter jurisdiction under the Rooker- Feldman doctrine and also that it should abstain under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

The plaintiffs appeal only the district court's Rooker- Feldman and Younger rulings. The plaintiffs do not appeal the district court's decision to dismiss their claims against the state court on Eleventh Amendment grounds. We hold that neither the Rooker- Feldman doctrine nor Younger bars the plaintiffs' federal challenge to the judge's gag orders, and we will accordingly reverse and remand for further proceedings.

I.

FOCUS is a Pittsburgh, Pennsylvania unincorporated association consisting of some fifty birth and foster parents whose goal is to make the Allegheny County Children and Youth Services ("CYS") more accountable, accessible and understandable. One of FOCUS' activities is to acquire information about the operations, policies and practices of CYS by listening to and advising individuals affected by the agency's activities. FOCUS has been interested in the highly-publicized ¹ Baby Byron case, a child dependency and adoption proceeding which involves a dispute between white foster parents and the biological mother over the placement of two young black children.

FOCUS claims that its attempts to keep informed about the Baby Byron case have been hampered by several gag orders. The first order, issued on January 24, 1994, states:

[I]t is hereby ORDERED, ADJUDGED, and DECREED that the parties and their counsel and others having knowledge or information whatsoever regarding this case are prohibited from releasing any such knowledge or information, in whole or in part, to the media or otherwise.

(App. at 16.) The second gag order, issued on November 1, 1994, directs that:

[The] parties are to have no contact with the public vis a vis discussing or referring to this case in any public context or forum.

(App. at 18.) The judge reaffirmed the second order on November 14, 1994, and it remains in effect today.

The parties to the Baby Byron case have not challenged the gag orders. The plaintiffs allege that this is because the judge has threatened to deny custody of the child to any party that publicly discusses the case. The plaintiffs further allege that the child's foster parents, Karen and Michael Derzack, "recently released a book detailing their experiences with Byron and their frustration with CYS and the courts," thus indicating that the Derzacks were willing to talk at some point prior to the entry of the gag orders. (App. at 9.)

On November 14, 1994, FOCUS (without Colville and Silvio) moved to intervene in the Baby Byron case for the limited purpose of challenging the gag orders on free speech grounds. The judge's tipstaff informed FOCUS that the judge would not accept FOCUS' intervention motion and that FOCUS would not be permitted to present argument in opposition to the gag orders. FOCUS claims that the judge refused even to accept the motion to intervene so that he would not have to deny it formally.

FOCUS immediately filed an "Emergency Petition For a Writ of Mandamus" with the Superior Court of Pennsylvania, seeking an order compelling the judge to permit FOCUS to intervene in the Baby Byron case and to participate in that afternoon's scheduled hearing. The superior court immediately denied that motion for lack of jurisdiction.

FOCUS responded on November 16, 1994, by filing a "Petition For Extraordinary Relief And Request For Expedited Decision" with the Pennsylvania Supreme Court, seeking to invoke the court's extraordinary "King's Bench" jurisdiction pursuant to 42 Pa.Cons.Stat.Ann. §§ 502, 726. Unlike the Emergency Petition to permit intervention, however, FOCUS asked the court to issue an order declaring the gag orders unconstitutional. The supreme court denied the Petition for Extraordinary Relief on December 12, 1994 without explanation.

On December 19, 1994, FOCUS joined with individual plaintiffs Silvio and Colville to file their verified complaint and motion for a temporary restraining order in the United States District Court for the Western District of Pennsylvania. The defendants moved to dismiss the next day for lack of subject matter jurisdiction. On December 22, 1994, the district court held a hearing on the motion to dismiss and granted it for the reasons stated above. This timely appeal followed.

II.

The parties do not raise the issue but, before we can proceed further on the merits, we must satisfy ourselves that the plaintiffs have standing to present their free speech challenges to the gag orders. E.g., Elkin v. Fauver, 969 F.2d 48, 52 n. 1 (3d Cir.) (considering standing issue sua sponte and noting that the courts of appeals have an independent obligation to ensure that federal jurisdiction is present in cases coming before them), cert. denied, 506 U.S. 977, 113 S.Ct. 473, 121 L.Ed.2d 379 (1992). "The party invoking federal jurisdiction bears the burden of establishing" the elements of standing, and "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Thus, "when standing is challenged on the basis of the pleadings, we 'accept as true all material allegations in the complaint, and ... construe the complaint in favor of the complaining party.' " Pennell v. City of San Jose, 485 U.S. 1, 7, 108 S.Ct. 849, 855, 99 L.Ed.2d 1 (1988) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)).

The standing issue arises in this case because the gag orders merely constrain the speech of the parties and the attorneys to the Baby Byron case; the plaintiffs do not complain that the orders affirmatively constrain their speech in any way. ² Of course, that alone does not mean the plaintiffs' case fails for lack of standing. "We have routinely found, as have other courts, that third parties have standing to challenge protective orders and confidentiality orders in an effort to obtain access to information or judicial proceedings." Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir.1994) (footnote omitted); see also In re Dow Jones & Co., 842 F.2d 603, 607 (2d Cir.) (noting the rights of potential recipients of speech to challenge the abridgment of that speech), cert. denied, 488 U.S. 946, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988).

That putative recipients of speech usually have standing to challenge orders silencing would-be speakers does not necessarily mean that the plaintiffs in this case have standing, however. The plaintiffs still must show that the gag orders have caused them injury in fact and that their injury is likely to be redressed by a favorable decision. See, e.g., United States v. Hays, --- U.S. ----, ----, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995) (setting forth the three elements necessary to satisfy "the irreducible constitutional minimum of standing").

Accordingly, courts have found that third parties have standing to challenge a gag order only when there is reason to believe that the individual subject to the gag order is willing to speak and is being restrained from doing so. E.g., In re Dow Jones, 842 F.2d at 607 (determining whether the recipients...