Hoover v. Wagner

• Decision Date: 06 March 1995
• Docket Number: No. 94-1699,94-1699
• Parties: Adeline HOOVER, Janice L. Peters, and Jack M. Roper, Plaintiffs-Appellants, v. Jeffrey WAGNER, Judge in and for the Circuit Court of Milwaukee County Branch 38, and Philip Arreola, Chief of Police, City of Milwaukee, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 845

47 F.3d 845

Adeline HOOVER, Janice L. Peters, and Jack M. Roper Plaintiffs-Appellants, v. Jeffrey WAGNER, Judge in and for the Circuit Court of Milwaukee County Branch 38, and Philip Arreola Chief of Police, City of Milwaukee Defendants-Appellees.

No. 94-1699.

United States Court of Appeals Seventh Circuit.

Argued Nov. 10, 1994.

Decided Feb. 2, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied March 6, 1995.

Michael Bertling, Carroll, Parroni & Postlewaite, Eau Claire, WI, Frederick Herbert Nelson, Mathew D. Staver (argued), Staver & Associates, Orlando, FL, Joseph H. Helm, Jr., David E. Wells, McLario & Helm, Menomonee Falls, WI, for Adeline Hoover, Janice L. Peters, Jack M. Roper.

Peter C. Anderson, Asst. Atty. Gen. (argued), Wisconsin Dept. of Justice, Madison, WI, Rudolph M. Konrad, Office of City Atty., Milwaukee, WI, for Jeffrey Wagner.

Rudolph M. Konrad, Office of City Atty., Milwaukee, WI, for Philip Arreola.

Before POSNER, Chief Judge, and COFFIN ^* and BAUER, Circuit Judges.

POSNER, Chief Judge.

This is a suit for declaratory and injunctive relief against a Milwaukee state judge and the city's chief of police. It is brought under 42 U.S.C. Sec. 1983 and charges infringement of the right to free speech conferred by the First Amendment. The plaintiffs are two anti-abortion demonstrators plus a journalist who reports on anti-abortion demonstrations and who, we infer from his having joined with the other plaintiffs in bringing the suit, is sympathetic to their position. The suit seeks a declaration that the injunction which the state judge issued in the case of State v. Missionaries to the Preborn, now pending on appeal to Wisconsin's intermediate court of appeals, is vague and overbroad and infringes the plaintiffs' freedom of speech. The suit also seeks an injunction against the enforcement of the state court injunction by the police in a manner that will deter the plaintiffs' exercise of their freedom of speech even more than the unenforced injunction would do.

The state court's injunction prohibits the named defendants "and all persons acting in concert with them and having received notice of" the injunction from trespassing on or blocking access to specified abortion clinics in Milwaukee; from congregating, demonstrating, or otherwise protesting within 25 feet of the entrances to the clinics; from photographing license plates of cars of people using the clinics; and from refusing to desist from "sidewalk counseling" at the request of the person being counseled. There are other provisions but these will suffice to indicate the injunction's character. The plaintiffs say in their complaint--truthfully, we must assume, because there is no other source of facts at this stage--that they want to protest abortions at the clinics named in the injunction (or, in the case of the journalist, to report on these protests), but without breaking the law, and that they are deterred from engaging in lawful protests by a well-grounded fear that the injunction will be interpreted as prohibiting, on pain of criminal contempt, persons such as themselves, who are not named in the injunction, from being seen talking to or even just standing near named defendants. They claim--and again we must take the claim at face value given the state of the record--that they or persons similarly situated have been threatened with arrest, arrested, and even prosecuted for violation of the injunction when the only evidence of violation was that they were seen in the vicinity of abortion clinics that were being picketed by defendants named in the injunction.

The district judge dismissed the suit, finding that the plaintiffs had no standing to sue. They had, he thought, nothing to fear from the injunction. Under Wisconsin law, a nonparty to an injunction is not considered to be acting "in concert" with a party to an injunction merely by associating with the party; the association must have the purpose and effect of assisting the party to violate the injunction. Dalton v. Meister, 84 Wis.2d 303, 267 N.W.2d 326, 330-31 (1978). (This is the usual rule, not anything peculiar to Wisconsin. See, e.g., Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2d Cir.1930) (L. Hand, J.).) Since the plaintiffs disclaim any intention to assist the named defendants to violate the injunction, they could not, the district judge concluded, be hurt by it; and without actual or threatened harm there is no standing to sue in federal court. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). We pointed in United States v. Board of Education, 11 F.3d 668, 673 (7th Cir.1993), to authority that "anyone who takes steps deliberately to thwart the enforcement of a judicial decree" can be punished for contempt even though he is not acting in concert with anyone named in the decree. Even if Wisconsin has this rule (so far as we know it does not), it would not affect the judge's ground for dismissing the suit. The plaintiffs disclaim any intention of deliberately thwarting the decree on their own as vigorously as they disclaim any intention of acting in concert with the people named in the decree to thwart it.

We do not agree with the district court's ruling on standing. All that a plaintiff need show to establish standing to sue is a reasonable probability--not a certainty--of suffering tangible harm unless he obtains the relief that he is seeking in the suit. Pennell v. City of San Jose, 485 U.S. 1, 8, 108 S.Ct. 849, 855-56, 99 L.Ed.2d 1 (1988); Village of Elk Grove Village v. Evans, 997 F.2d 328, 329 (7th Cir.1993); North Shore Gas Co. v. EPA, 930 F.2d 1239, 1242 (7th Cir.1991); City of St. Louis v. Department of Transportation, 936 F.2d 1528, 1532 (8th Cir.1991). Arrest, prosecution, and conviction are tangible harms, and so is abandoning one's constitutional right of free speech in order to avert those harms. Therefore the question on which standing turns in this case is the probability that unless the plaintiffs obtain a declaration or injunction limiting the enforcement of the Wisconsin state court's injunction, they will either forgo their right of free speech or be arrested, prosecuted, and perhaps even convicted. We cannot reckon the probability of these consequences as being low. The two abortion protesters in the trio of plaintiffs have made clear that they want to go right up to the line that separates legal from illegal protest. If that line is drawn in vague and wavering fashion by the state court injunction, or if the Milwaukee police and other law enforcement officers interpret the injunction in a way that subjects to arrest people who stop just short of the line, then either these plaintiffs will be arrested if they insist on going right up to the line, or they will draw well back from the line and as a result (since it is quite possible that the injunction goes as far as it could go without violating the First Amendment) forgo the full exercise of their constitutional rights. Cf. Virginia v. American Booksellers Ass'n, 484 U.S. 383, 392-93, 108 S.Ct. 636, 642-43, 98 L.Ed.2d 782 (1988). The journalist plaintiff fears, again not unreasonably, that the police will not accept his bona fides as a journalist but will treat him (perhaps realistically) as just another abortion protester. These features were missing from O'Shea v. Littleton, 414 U.S. 488, 490-99, 94 S.Ct. 669, 673-78, 38 L.Ed.2d 674 (1974), an otherwise similar suit in which the Court expressed doubt that the plaintiffs had standing, without quite holding that they did not.

Perhaps anticipating our conclusion that all three plaintiffs have standing to sue, the defendants have tendered two alternative grounds upon which to uphold the dismissal of the suit. The first is the Younger doctrine, and the second the Rooker- Feldman doctrine. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The core of the Younger doctrine is the proposition that a person who is being prosecuted by a state for violating its laws is not allowed to derail the prosecution by bringing a suit in federal court to enjoin the prosecution on the ground that the state statute on which it is based is unconstitutional. His remedy is to plead the unconstitutionality of the statute as a defense in the state court proceeding. The doctrine is inapplicable here because none of the plaintiffs is being prosecuted for anything. They fear eventual prosecution if they continue with their protest activities, but no prosecution has been instituted.

Nor is there any indication that they have as yet committed a colorable violation of the state court injunction for which they may be prosecuted. In such a case Younger, as interpreted in such cases as Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2292, 45 L.Ed.2d 223 (1975); Illinois v. General Electric Co., 683 F.2d 206, 212 (7th Cir.1982), and Alleghany Corp. v. Haase, 896 F.2d 1046, 1050 (7th Cir.1990), vacated as moot under the name Dillon v. Alleghany Corp., 499 U.S. 933, 111 S.Ct. 1383, 113 L.Ed.2d 441 (1991), might require the federal court to stay its hand long enough to allow the state a reasonable time to decide whether to prosecute the plaintiff and by doing so place itself in a position where it can invoke Younger. This is not such a case. The plaintiffs do not now have and may never have an opportunity to make their constitutional arguments by way of defense to a prosecution or other proceeding brought by the state against them, unless they violate the injunction, and they are not required to do that in order to get a determination of its constitutionality. Wooley v. Maynard, 430 U.S. 705, 710, 97 S.Ct. 1428, 1433, 51 L.Ed.2d 752 (1977).

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