McCollester v. City of Keene, New Hampshire

• Decision Date: 11 January 1982
• Docket Number: No. 81-1427,81-1427
• Parties: Kathleen McCOLLESTER, etc., et al., Plaintiffs, Appellees, v. The CITY OF KEENE, NEW HAMPSHIRE, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 617

668 F.2d 617

Kathleen McCOLLESTER, etc., et al., Plaintiffs, Appellees, v. The CITY OF KEENE, NEW HAMPSHIRE, et al., Defendants, Appellants.

No. 81-1427.

United States Court of Appeals, First Circuit.

Argued Oct. 6, 1981.

Decided Jan. 11, 1982.

Eugene M. Van Loan, III., Manchester, N.H., with whom Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, N. H., was on brief, for appellant.

Russell F. Hilliard, Concord, N.H., with whom Upton, Sanders & Smith, Concord, N.H., was on brief, for appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, WYZANSKI, Senior District Judge. ^*

WYZANSKI, Senior District Judge.

This appeal from a judgment declaring, in effect, that the juvenile curfew ordinance of the City of Keene on its face violates the Fourteenth Amendment raises the question whether the plaintiff alleged such a realistic danger of sustaining a direct injury from defendants' enforcement of the ordinance as to create a "case or controversy" within Article III of the United States Constitution.

New Hampshire R.S.A. 31:43-a authorized the City of Keene, by action of its City Council, to adopt the substantive provisions set forth in R.S.A. 31:43-c and the penal provisions set forth in R.S.A. 31:43-e, -f and -g as its own municipal law. On July 3, 1980 the Keene City Council did make such an adoption by an ordinance which is the target of this suit. By resolutions passed on July 17, 1980 and February 5, 1981 the Council reduced, but did not otherwise alter, the coverage of the ordinance. The relevant part of the July 3, 1980 ordinance as amended ¹ requires that "persons under the age of 16 years not be on any public street or in any public place after the hour of 9 o'clock (changed by the February 5, 1981 amendment to between 10 p. m. and 5 a. m.) unless accompanied by a parent, guardian, or other suitable person" (defined in the February 5, 1981 amendment as a "person over the age of 18 years authorized or approved by the child's parent or guardian").

The minor plaintiff Kathleen McCollester (hereafter called "the plaintiff") and her father brought in the district court on September 29, 1980 this action for injunctive relief and a declaratory judgment against the City of Keene, its mayor, or, its city manager, and its police chief. Suing solely on her own behalf, the plaintiff alleged that the July 3, 1980 ordinance violated her Fourteenth Amendment rights. ² Jurisdiction was invoked under 28 U.S.C. §§ 1343, 2201 and 2202.

With respect to the plaintiff and the defendants, the record gives us only the following information. When the complaint was filed the plaintiff alleged that she then was "a minor under the age of sixteen years ... residing in Keene" and that the defendants have undertaken to enforce the ordinance by arrest and prosecution. In their answer the defendants admitted that they "have undertaken to enforce the state statute"-which, as appears from a pretrial conference in the district court, includes the city ordinance.

The district judge delivered an opinion directing that the ordinance be "stricken" and caused the entry of a judgment in accordance with the opinion. We read the judgment as though it declared that on its face the July 3, 1980 ordinance, as amended on July 17, 1980 and February 5, 1981, is invalid under the Fourteenth Amendment (including its incorporation of the First Amendment).

We need consider only whether the plaintiff when she sued on September 29, 1980 ³ had been subjected to a realistic danger of sustaining a direct injury as a result of the July 3, 1980 ordinance's operation so that there then was an actual "case or controversy" of a type susceptible of adjudication on its merits by a court established under Article III of the United States Constitution. ⁴

The general principles which govern this case were recently set forth in Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298-299, 99 S.Ct. 2301, 2308-2309, 60 L.Ed.2d 895 (1979):

A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. O'Shea v. Littleton, 414 U.S. 488, 494 (94 S.Ct. 669, 675, 38 L.Ed.2d 674) (1974). But "(o)ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough." Pennsylvania v. West Virginia, 262 U.S. 553, 593 (43 S.Ct. 658, 663, 67 L.Ed. 1117) (1923); see Regional Rail Reorganization Act Cases, 419 U.S. 102, 143 (95 S.Ct. 335, 358, 42 L.Ed.2d 320) (1974); Pierce v. Society of Sisters, 268 U.S. 510, 526 (45 S.Ct. 571, 69 L.Ed. 1070) (1925).

When contesting the constitutionality of a criminal statute, "it is not necessary that (the plaintiff) first expose himself to actual arrest or prosecution to be entitled to challenge (the) statute that he claims deters the exercise of his constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459 (94 S.Ct. 1209, 1215, 39 L.Ed.2d 505) (1974); see Epperson v. Arkansas, 393 U.S. 97 (89 S.Ct. 266, 21 L.Ed.2d 228) (1968); Evers v. Dwyer, supra (358 U.S. 202) at 204 (79 S.Ct. 178 at 179, 3 L.Ed.2d 222). When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Doe v. Bolton, 410 U.S. 179, 188 (93 S.Ct. 739, 745, 35 L.Ed.2d 201) (1973). But "persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs." Younger v. Harris, 401 U.S. 37, 42 (91 S.Ct. 746, 749, 27 L.Ed.2d 669) (1971); Golden v. Zwickler, 394 U.S. 103 (89 S.Ct. 956, 22 L.Ed.2d 113) (1969). When plaintiffs "do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible," they do not allege a dispute susceptible to resolution by a federal court. Younger v. Harris, supra (401 U.S.) at 42 (91 S.Ct. at 749).

Regional Rail Reorganization Act Cases, 419 U.S. 102, 143 n.29, 95 S.Ct. 335, 358 n.29, 42 L.Ed.2d 320 (1974), which Babbitt cites, stated that:

Because the decision to instigate a criminal prosecution is usually discretionary with the prosecuting authorities, even a person with a settled intention to disobey the law can never be sure that the sanctions of the law will be invoked against him. Further, whether or not the injury will occur is to some extent within the control of the complaining party himself, since he can decide to abandon his intention to disobey the law. For these reasons, the maturity of such disputes for resolution before a prosecution begins is decided on a case-by-case basis, by considering the likelihood that the complainant will disobey the law, the certainty that such disobedience will take a particular form, any present injury occasioned by the threat of prosecution, and the likelihood that a prosecution will actually ensue. Compare Golden v. Zwickler, 394 U.S. 103 (89 S.Ct. 956, 22 L.Ed.2d 113) (1969), with Albertson v. SACB, 382 U.S. 70 (86 S.Ct. 194, 15 L.Ed.2d 165) (1965); Steffel v. Thompson, 415 U.S. 452, 459 (94 S.Ct. 1209, 1215, 39 L.Ed.2d 505) (1974).

Even when the plaintiff alleges that the enactment which she challenges is facially invalid under the First Amendment or overbroad or vague, she is not entitled to a declaratory judgment or injunction unless she also alleges that she is subject to a realistic danger of prosecution. Steffel v. Thompson, 415 U.S. 452, 473-475, 94 S.Ct. 1209, 1222-1223, 39 L.Ed.2d 505 (1974); Laird v. Tatum, 408 U.S. 1, 11-14, 92 S.Ct. 2318, 2324-2326, 33 L.Ed.2d 154 (1972). The aspect of standing involved in the requirement that the plaintiff allege that she is subject to a realistic danger is different from and in addition to the aspect of standing involved in the "invalid on its face" doctrine.

Taking a "case-by-case" approach, and paying due attention to the foregoing quotations without applying them mechanically, we conclude that the plaintiff has not presented a controversy which is justiciable under Article III of the Constitution.

Article III of the Constitution limits federal court jurisdiction to actual "cases or controversies," thus excluding feigned cases. That principle implies that the plaintiff must allege facts showing that she personally is in controversy with the defendant. Hence, a "plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt, supra, 442 U.S. at 298, 99 S.Ct. at 2308. (Emphasis added.) She must have a "personal stake in the outcome." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).

An allegation as to what the plaintiff personally intends to do is necessary to show that not only she but also her intended conduct are at least plausibly within the potential reach of the statute or ordinance. That much is implied by the statement in Regional Rail Reorganization Act Cases, supra, that the court must consider "the likelihood that the complainant will disobey the law" and "the certainty that such disobedience will take a certain form." 419 U.S. at 143 n.29, 95 S.Ct. at 358 n.29. It is also implied in the sentence in Babbitt, supra, which begins "When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute...." 442 U.S. at 298, 99 S.Ct. at 2308.

The complaint in the instant case is inadequate because it fails to allege the conduct in which the plaintiff intends to engage.

Moreover, the complaint is inadequate for another reason. The plaintiff must allege that there is a real risk that she personally will sustain a direct injury...