Hallandale Professional Fire Fighters Local 2238 v. City of Hallandale

• Decision Date: 30 January 1991
• Docket Number: P,No. 89-6225,AFL-CI,89-6225
• Parties: HALLANDALE PROFESSIONAL FIRE FIGHTERS LOCAL 2238, International Association of Fire Fighters,laintiffs-Appellees, v. CITY OF HALLANDALE, R.J. Intindola, City Manager and Richard Wroblewski, Personnel Director, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 756

922 F.2d 756

HALLANDALE PROFESSIONAL FIRE FIGHTERS LOCAL 2238, International Association of Fire Fighters, AFL-CIO, Plaintiffs-Appellees, v. CITY OF HALLANDALE, R.J. Intindola, City Manager and Richard

Wroblewski, Personnel Director, Defendants-Appellants.

No. 89-6225.

United States Court of Appeals, Eleventh Circuit.

Jan. 30, 1991.

Richard Kane, Hallandale, Fla., for defendants-appellants.

Robert A. Sugarman, Miami, Fla., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON and COX, Circuit Judges, and WISDOM ^*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Defendants-appellants City of Hallandale, R.J. Intindola, and Richard Wroblewski (hereinafter collectively called "the City") issued a policy establishing guidelines for criticism of supervisors and other city officials by city employees. After the effective date of the policy but before it had ever been enforced, plaintiff-appellee Hallandale Professional Fire Fighters Local 2238 (hereinafter called "the Union") sued for injunctive relief under 42 U.S.C. Sec. 1983. The Union challenged the policy on its face, claiming that it impermissibly regulated city employees' speech in violation of the first amendment and was void for vagueness in violation of fifth and fourteenth

amendment due process guarantees. The district court accepted the Union's claims and permanently enjoined implementation of the policy. Concluding that the questions presented by the Union's complaint are not justiciable, we reverse.

I.

Since 1982 the City has been issuing a series of memorandums reflecting city policies on many subjects. The focus of this appeal is the 98th policy memo in this series: a policy memo establishing guidelines for employee criticism of supervisors and other city officials. ¹

The text of the challenged policy is set forth in the Appendix following this opinion. The first two paragraphs of the policy state its general provisions. Paragraph number 1 provides that employees who are wantonly offensive or antagonistic in their criticism, or whose conduct interferes with cooperation or impairs efficiency, are subject to disciplinary action. Paragraph number 2 provides the same for employees who divulge confidential information. The language and thrust of these two provisions are not new; the language is almost identical to that contained in regulations adopted by the local Civil Service Board in 1968.

But paragraph number 3 is new. Beginning with the clause "[t]he following are considered to be within the coverage of this policy," it lists examples of specific kinds of employee behavior meant to be covered by the general prohibitions of paragraphs 1 and 2. These examples include: (1) statements which incite others to action which is unlawful or not permitted under an applicable collective bargaining agreement, including calling upon other employees to disobey lawful orders or calling upon public employees to strike, (2) statements made with knowledge or reckless disregard of their falsity, including statements supported only by "unverified hearsay," and (3) statements which are calculated to and do in fact inflame the public. The last line of the policy directs employees with questions regarding it to seek clarification from the Personnel Department.

Before the policy had been applied in any instance, the Union brought this facial attack. The district court permanently enjoined implementation of the policy, holding that it was an unconstitutional attempt to regulate protected speech, an unconstitutional prior restraint, and void for vagueness.

II.

This court, like all federal courts, is a court of limited jurisdiction. See U.S. Const. art. III, Sec. 2. As such, its power to review the constitutionality of governmental acts is derived from and limited by its responsibility for resolving concrete disputes brought before it for decision. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 817 (5th Cir.1979). Before rendering a decision, therefore, every federal court operates under an independent obligation to ensure it is presented with the kind of concrete controversy upon which its constitutional grant of authority is based; and this obligation on the court to examine its own jurisdiction continues at each stage of the proceedings, even if no party raises the jurisdictional issue and both parties are prepared to concede it. FW/PBS, Inc. v. City of Dallas, --- U.S. ----, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).

Because the Union's facial attack on the City's policy is anticipatory, it raises serious questions of justiciability. Justiciability--described as "a notably amorphous notion" by the former fifth circuit, Eaves, 601 F.2d at 817--encompasses both constitutional and prudential concerns. The constitutional aspect of the justiciability analysis focuses on whether an actual "case or controversy" as required by Article III is In the specific context of the Union's facial challenge to the City's unenforced policy, the justiciability concern chiefly at issue is one of ripeness. ² And where ripeness is the issue--generally in the context of a facial attack on a statute, ordinance, regulation, or policy, such as here--the general justiciability analysis outlined above takes on a more particularized form consisting of two essential inquiries: Do the conflicting parties present a real, substantial controversy which is definite and concrete rather than hypothetical or abstract? See Babbitt v. United Farm Wkrs. Nat'l Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). If so, is the factual record nonetheless too undeveloped to produce a well-reasoned constitutional decision? Id. at 300-01, 99 S.Ct. at 2310.

presented, while the prudential part asks whether it is appropriate for this case to be litigated in a federal court by these parties at this time. See Eaves, 601 F.2d at 817 (citing Socialist Labor Party v. Gilligan, 406 U.S. 583, 588-89, 92 S.Ct. 1716, 1719, 32 L.Ed.2d 317 (1972)).

III.

To establish that a facial challenge to a governmental act presents a real and substantial controversy, a plaintiff must show he has sustained, or is in immediate danger of sustaining, a direct injury as the result of that act. ³ See Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308; Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). The injury requirement is most loosely applied--particularly in terms of how directly the injury must result from the challenged governmental action--where first amendment rights are involved, because of the fear that free speech will be chilled even before the law, regulation, or policy is enforced. See Solomon v. City of Gainesville, 763 F.2d 1212 (11th Cir.1985); Eaves, 601 F.2d 809 (5th Cir.1979) (both allowing pre-enforcement challenges to local ordinances based on first amendment). But even in a first amendment context the injury-to-the-plaintiff requirement cannot be ignored. See, e.g., Laird, 408 U.S. 1, 92 S.Ct. 2318; United Public Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947) (both concluding that facial challenges to governmental actions were not justiciable because injuries alleged were too speculative, even though core first amendment values--that is, political speech and conduct--were involved). ⁴

IV.

The plaintiff Union has not demonstrated concrete injury, either actual or impending, The Supreme Court has said, however, that "[a]llegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." Laird, 408 U.S. at 13-14, 92 S.Ct. at 2325-26. The Union tries to distinguish Laird: the plaintiff in Laird alleged a chill arising out of the surveillance activities of a government agency rather than out of an exercise of governmental power which was "regulatory, proscriptive, or compulsory in nature." See id. at 11, 92 S.Ct. at 2324-25. Assuming for the sake of argument that the City's policy on permissible employee criticism is "regulatory, proscriptive, or compulsory in nature," we cannot accept the proposition that this characteristic of the policy alone could establish an "objective" chill sufficient to meet the actual or impending injury-to-plaintiff requirement. While the Laird Court did point out that the nature of the challenged governmental action at issue in that case--that is, general surveillance activities of the governmental agency rather than regulations or laws--differed from that in which questions of ripeness and chill generally arise, id., nothing in that case states or implies that, if the governmental action is "regulatory, proscriptive, or compulsory in nature," the requirement of alleging a specific harm is either negated or automatically satisfied. The Laird Court actually went on to cite Mitchell--a decision disallowing a facial attack by public employees on the Hatch Act, which is clearly regulatory, proscriptive, and compulsory in nature--for the proposition that a claim of specific harm is necessary. See Laird, 408 U.S. at 13-14, 92 S.Ct. at 2325-26 (citing Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 564).

caused by the City's policy. The closest plaintiff has come to doing so is the bald assertion in its complaint that the mere existence of the policy regarding employee criticism "has a chilling effect on the freedom of speech rights of those City of Hallandale employees represented by Plaintiff."

The Union essentially contends that regulatory, proscriptive, or compulsory governmental action which may have some chilling effect on the exercise of first amendment rights must be open to facial attack regardless of harm. To support this contention, the Union relies heavily on Solomon, 763 F.2d 1212, and Eaves, 601 F.2d 809, the Eleventh and former Fifth Circuit cases cited above for the...