Hurley v. Hinckley, Civ. A. No. 69-88

• Decision Date: 12 January 1970
• Docket Number: 69-100.,Civ. A. No. 69-88
• Citation: 304 F. Supp. 704
• Parties: Kathleen HURLEY, William Pastereich, Alfred L. Grace, Eurdeane Lynch, Lee Staples, Marguerite Gomes, Ruth Banner, Ruth L. Boston, Mary R. Miranda, Patricia Rose, and Judy S. Benttinen, Plaintiffs, v. Albert HINCKLEY, Chief of Police of the Town of Barnstable; Robert H. Quinn, Attorney General of the Commonwealth of Massachusetts; Mrs. Ruth Rusher, Director of the Welfare Office in the Town of Barnstable; and Robert F. Ott, Commissioner of Welfare for the Commonwealth of Massachusetts; individually and in their official capacities; Defendants. Carol DOYLE, individually and on behalf of the National Welfare Rights Organization, the Massachusetts Welfare Rights Organization, and the Somerville Welfare Rights Organization, and of other persons similarly situated, Plaintiff, v. Thomas J. O'BRIEN, Chief of Police of the City of Somerville; Robert H. Quinn, Attorney General of the Commonwealth of Massachusetts; James F. Brennan, Mayor of the City of Somerville; William B. Casey, Director of the Welfare Office in the City of Somerville; and Robert F. Ott, Commissioner of Welfare for the Commonwealth of Massachusetts; individually and in their official capacities, Defendants.
• Court: U.S. District Court — District of Massachusetts

304 F. Supp. 704

Kathleen HURLEY, William Pastereich, Alfred L. Grace, Eurdeane Lynch, Lee Staples, Marguerite Gomes, Ruth Banner, Ruth L. Boston, Mary R. Miranda, Patricia Rose, and Judy S. Benttinen, Plaintiffs, v. Albert HINCKLEY, Chief of Police of the Town of Barnstable; Robert H. Quinn, Attorney General of the Commonwealth of Massachusetts; Mrs. Ruth Rusher, Director of the Welfare Office in the Town of Barnstable; and Robert F. Ott, Commissioner of Welfare for the Commonwealth of Massachusetts; individually and in their official capacities; Defendants.

Carol DOYLE, individually and on behalf of the National Welfare Rights Organization, the Massachusetts Welfare Rights Organization, and the Somerville Welfare Rights Organization, and of other persons similarly situated, Plaintiff, v. Thomas J. O'BRIEN, Chief of Police of the City of Somerville; Robert H. Quinn, Attorney General of the Commonwealth of Massachusetts; James F. Brennan, Mayor of the City of Somerville; William B. Casey, Director of the Welfare Office in the City of Somerville; and Robert F. Ott, Commissioner of Welfare for the Commonwealth of Massachusetts; individually and in their official capacities, Defendants.

Civ. A. Nos. 69-88, 69-100.

United States District Court D. Massachusetts.

June 20, 1969.

Judgment Affirmed January 12, 1970.

COPYRIGHT MATERIAL OMITTED

Frank J. Richards, Orleans, Mass., H. Noyes Macomber, Hyannis, Mass., Michael Feldman, Lawrence Kotin, Massachusetts Law Reform Institute, Boston, Mass., for plaintiffs Hurley and others.

Michael Feldman, Lawrence Kotin, Boston, Mass., A. Van C. Lanckton, Paul Newman, Community Legal Assistance Project, Cambridge, Mass., for plaintiffs Doyle and others.

Willie J. Davis, Asst. Atty. Gen. Commonwealth of Mass. Boston, Mass., for defendants.

Before McENTEE, Circuit Judge, and CAFFREY and MURRAY, District Judges.

Judgment Affirmed January 12, 1970. See 90 S.Ct. 603.

OPINION OF THE COURT

FRANK J. MURRAY, District Judge.

These are two actions, each brought under Title 42 U.S.C. § 1983, seeking injunctive relief under Title 28 U.S.C. §§ 2281, 2284 and 1343(3), and declaratory relief pursuant to Title 28 U.S.C. § 2201, against certain Massachusetts State and Town officers and employees. In Civil Action No. 69-88-M ("Barnstable case") plaintiffs seek to restrain the defendants from prosecuting, and from threatening further prosecution of them in the Massachusetts courts for violations of Massachusetts General Laws, chapter 266, section 120 (trespass statute), which in pertinent part provides:

Whoever, without right, enters or remains in or upon the dwelling house, buildings, boats or improved or enclosed land, wharf or pier of another, after having been forbidden so to do by the person who has the lawful control of said premises, either directly or by notice posted thereon, shall be punished by a fine of not more than twenty dollars.

Civil Action No. 69-100-M ("Somerville case") was brought by plaintiff Doyle as a class action, Fed.R.Civ.P. 23, for an injunction against defendants to restrain them from threatening prosecution of plaintiff and others of the described class under the trespass statute, and for declaratory relief.

Plaintiff in the Somerville case is a recipient of aid to dependent children and a member of certain welfare rights organizations — voluntary associations whose members are primarily women receiving aid for dependent children and whose objectives are to obtain full and equitable aid for each child and to call attention to inequities and indignities in the administration of the welfare law. In the Barnstable case there were included among the plaintiffs certain recipients of aid to dependent children, who are also members of welfare rights organizations, and certain male organizers and advocates of welfare rights organizations.

In the Somerville case it is agreed that plaintiff was distributing leaflets relating to "welfare rights" in the waiting room of Somerville's welfare office. She refused to cease distributing the leaflets or to leave the office when, after about four hours, requested so to do by the welfare director and the police. She requested to see her caseworker and was permitted to do so. Later she was asked to carry on her activity of distributing leaflets in the corridor of the City Hall outside the waiting room. She offered no protest and complied with the request. After being in the area outside the waiting room for a short period of time, she was told by police officers to leave or she would be arrested for trespass. Thereupon she left. Plaintiff's actions did not disrupt the normal activities of the Somerville welfare office. She was the only one engaged in handing out the leaflets, and she was accompanied by no other person. No other member of her "class" was present during the time she was engaged in distributing the leaflets. She made no threats, no loud vocal demands, and no solicitations of visitors to the welfare office in an aggressive or overbearing manner. No property was damaged, removed or disarranged.

In the Barnstable case there was a limited stipulation as to certain facts, and the court heard evidence. From the evidence offered the court finds the following facts. Plaintiffs were among a group of twenty to thirty persons who were permitted by a Barnstable police officer to enter the walfare office in the Barnstable Town Hall. No objection was offered to their presence in the waitingroom area. Within a brief period of time several of the group, at least twenty — some of them carrying in their hands "petitions", so called, setting forth welfare demands — moved into the office space where the clerical and secretarial employees were carrying on the duties of their employment. The presence of the group, including plaintiffs, in the relatively confined area of the small office space made it impossible for the employees to carry on normally their duties. After a short period of time during which disruption of the office functions continued, the welfare director instructed the employees subject to her supervision to leave the office. About this time plaintiff Rose, who appeared to be the leader of the group, demanded that the welfare director meet with her and a committee. At no time was there any identification of the members of the committee or specification of its number. The welfare director refused the demand, but offered to meet with plaintiff Rose and talk with her about "any grievance" she might have. Plaintiff Rose declined the offer. None of the other plaintiffs accepted the offer. After the members of the group, including plaintiffs, were present in the office space for more than an hour, they were asked by the welfare director to leave the premises. During their presence in the office, there were loud voices and at times profane, obscene and abusive language emanating from the group. The normal functions of the office had suspended and, due to the disruptive actions of members of the group, could not have been carried on by the employees if they had remained and sought to do so. When members of the group, including plaintiffs, refused to leave after being requested to do so by the welfare director they were told they would be arrested if they stayed. Some left at this point and others, including plaintiffs, were arrested. Not all who remained were arrested. Those who were arrested were charged with trespass under the trespass statute.

In both cases plaintiffs seek to restrain the defendants therein from the enforcement and execution of the trespass statute on the ground of its unconstitutionality under the First and Fourteenth Amendments of the Constitution of the United States, and seek a declaratory judgment that the trespass statute contravenes these Amendments. Plaintiffs' contentions are that the trespass statute is unconstitutionally vague because clauses such as "without right" and "of another" do not give them sufficient notice of the scope or limits of the statute in relation to the First Amendment and "make it unclear whether the statute applies to persons petitioning and expressing themselves on public property". They assert that no Massachusetts court has construed the statute, and claim that there is no apparent construction which would clarify the statute's vague language. They further contend that the statute is overbroad because it reaches and prohibits activities protected by the First Amendment, that is, "the right to petition and to express grievances to public officials on public property".

We begin with the observation that the trespass statute is not aimed at regulating speech or communication in any form, and with the further observation that what was involved in both Barnstable and Somerville cases was other than "pure speech". Physical presence in a public building dedicated to specific public uses other than that of a public thoroughfare, even presence for the purpose of communicating ideas, is not "pure speech". Since elements of plaintiffs' conduct as well as speech are involved here, plaintiffs' activity was subject to reasonable regulation by the State. We note that not all conduct claimed to have communicative purpose is protected as speech by the First Amendment. The Supreme Court has rejected the contention that the First and Fourteenth Amendments "afford the same kind of freedom to those who would communicate ideas by conduct * * * as these amendments afford to those who communicate ideas by pure speech". Cox v. Louisiana I, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965). See also United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). We also recognize there can be no valid blanket assertion that the state has an absolute right to regulate all forms of conduct in public buildings when the exercise of First Amendment rights is claimed. See Brown v. Louisiana, 383 U.S. 131...