Grace v. Burger, 80-2044

Decision Date08 September 1981
Docket NumberNo. 80-2044,80-2044
Citation665 F.2d 1193,214 U.S. App. D.C. 375
PartiesMary Terese GRACE, Thaddeus Zywicki, Appellants, v. Warren E. BURGER, Chief Justice of the United States Supreme Court, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-01205).

R. Craig Lawrence, Asst. U. S. Atty., Washington, D.C., with whom Charles F. C. Ruff, U. S. Atty., Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D.C., were on brief, for appellees.

Sebastian K. D. Graber, Alexandria, Va., for appellants.

Before MacKINNON, EDWARDS and GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge EDWARDS.

Separate statement by Circuit Judge MacKINNON, dissenting in part and concurring in part.

HARRY T. EDWARDS, Circuit Judge:

In this case, appellants challenge the constitutionality of 40 U.S.C. § 13k, which declares:

It shall be unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.

40 U.S.C. § 13k (1976). 1 As interpreted and applied by the Marshal of the Supreme Court, the individual responsible for the enforcement of the statute, section 13k prohibits all expressive conduct, including all picketing and leafletting, on the Supreme Court grounds. 2

For the reasons set forth below, we find that this statute is repugnant to the First Amendment of the Constitution. While public expression that has an intent to influence the administration of justice may be restricted, Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), Congress has accomplished that result with a more narrowly drawn statute, 18 U.S.C. § 1507, that is fully applicable to the Supreme Court grounds. Since we are unable to find any other significant governmental interest to justify the absolute prohibition of all expressive conduct contained in section 13k, we hold that the statute is unconstitutional and void. As a result, appellants are entitled to the declaratory and injunctive relief that they seek.

I. BACKGROUND

The facts of this case are not in dispute. 3 In May 1978, appellant Thaddeus Zywicki, an elderly Catholic missionary, went by himself to the sidewalk in front of the Supreme Court to distribute a leaflet to passersby. Standing near a coin-operated vending machine selling the Washington Star, appellant attempted to distribute a reprint of a "letter to the editor" published in the Washington Post concerning the removal of unfit judges from the federal bench. After distributing a few leaflets, appellant was approached by a member of the Supreme Court police, who advised appellant that Title 40 of the United States Code prohibited leafletting anywhere on the Supreme Court grounds. Fearing arrest, appellant departed.

On January 8, 1980, appellant Zywicki returned to the Supreme Court sidewalk to distribute pamphlets that contained an invitation to, and information about, several religious meetings concerning oppressed peoples of Central America. As before, appellant was told that he would be arrested if he continued to distribute the leaflets.

On February 4, 1980, appellant again returned to leaflet. On this occasion, however, Zywicki informed the police officer that a decision of the District of Columbia Superior Court had narrowed the application of 40 U.S.C. § 13k to prohibit only conduct engaged in "with the intent to disrupt or interfere with or impede the administration of justice or with the intent of influencing the administration of justice." 4 The officer radioed a person inside the Supreme Court building for clarification, and a Mr. White emerged and stated that the statute had not been changed and that appellant was subject to arrest for leafletting on the sidewalk. Appellant protested that newspapers were permitted to be sold while he was denied the right to distribute printed matter of his choosing, but peacefully left the grounds.

Upon learning of these events, appellant Mary Grace appeared on the sidewalk in front of the Supreme Court on March 17, 1980, and stood there alone with a sign that recited verbatim the words of the First Amendment. Shortly after her arrival, a Supreme Court police officer approached appellant and told her that her conduct violated Title 40 of the United States Code. The officer advised appellant that, unless she left the grounds, she would have to accompany the officer into the building. Fearing arrest, appellant Grace left.

On May 13, 1980, appellants Zywicki and Grace filed a complaint in the District Court seeking a declaratory judgment that 40 U.S.C. § 13k is unconstitutional on its face, and a permanent injunction prohibiting the Supreme Court police from enforcing the statute. Both parties filed motions for summary judgment on the merits of this controversy. On August 7, 1980, however, the District Court dismissed appellants' complaint for failure to exhaust administrative remedies. R. 8 (Memorandum Opinion). This ground for dismissal had not been briefed or argued by either party in the District Court.

In this appeal, appellants contend that the dismissal of the complaint for failure to exhaust administrative remedies was improper. Appellants also seek a judgment from this court declaring 40 U.S.C. § 13k void on its face, and an injunction prohibiting further enforcement of section 13k. 5 In response, although seeking an affirmance, the Government does not advance the exhaustion of administrative remedies reasoning relied upon by the District Court. Rather, the Government contends that the complaint was properly dismissed because section 13k is a proper limitation of expressive conduct on the grounds of the Supreme Court.

II. EXHAUSTION OF ADMINISTRATIVE REMEDIES

The District Court dismissed this action on the ground that appellants failed to apply to the Supreme Court Marshal for a permit to engage in the conduct for which they now seek judicial protection. Given the circumstances of this case, the judgment of the District Court was plainly erroneous. We hold that appellants' complaint should not have been dismissed for failure to secure a permit or for failure to otherwise pursue some ill-defined administrative remedy.

The statutory scheme at issue here makes no provision for obtaining a permit to leaflet or picket on the Supreme Court grounds. Section 13k flatly prohibits all expressive conduct on the Court grounds, not merely expressive conduct engaged in without a permit or license. Compare, e.g., Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953). Furthermore, no administrative procedures have been established by which persons may obtain permission to leaflet or picket on Supreme Court grounds. 6

Most importantly, the Government has conceded in this case that all expressive conduct-without exception-is forbidden on Court grounds. The Supreme Court police officers who approached appellants did not indicate that appellants' conduct might be permitted if prior approval from the Marshal were obtained. In addition, the Marshal's affidavit to the District Court makes it absolutely plain that no expressive conduct will be permitted on the grounds of the Supreme Court. 7 Thus, so far as the Government is concerned, section 13k does not contemplate or require any permit or licensing procedure for expressive conduct on Court grounds.

In these circumstances, dismissal of the complaint for failure to exhaust administrative remedies was without justification. No administrative remedies existed for appellants to exhaust. While appellants conceivably could have sought formal permission from the Supreme Court Marshal, such action would have been an empty-and thus unnecessary-ritual. As stated by Chief Judge Robinson in Lodge 1858, American Federation of Government Employees v. Paine, 436 F.2d 882 (D.C.Cir.1970), "the exhaustion requirement contemplates an efficacious administrative remedy, and does not obtain when it is plain that any effort to meet it would come to no more than an exercise in futility." 436 F.2d at 896 (separate opinion).

The mere fact that the position of Marshal exists, and that the person in that position may possess the power to withhold enforcement of section 13k, does not mean that an "efficacious administrative remedy" was available to appellants. The statute sets forth no criteria under which the Marshal could determine whether to grant or deny an application for permission to leaflet or picket. This alone would call into question the judgment of the District Court. As the Supreme Court has held, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definitive standards to guide the licensing authority, is unconstitutional," Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938-39, 22 L.Ed.2d 162 (1969); moreover, the Court also noted that "a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license." Id. at 151, 89 S.Ct. at 939. See also Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). 8

For all of the foregoing reasons, we reject the decision of the District Court dismissing appellants' complaint for failure to secure a permit or otherwise to exhaust an administrative remedy.

III. THE CONSTITUTIONALITY OF 40 U.S.C. § 13k

The Government contends that the District Court was correct in dismissing appellants' complaint, since the prohibition of expressive conduct contained in section 13k does not unduly interfere with First Amendment righ...

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