McKusick v. City of Melbourne, Fla.

• Citation: 96 F.3d 478
• Decision Date: 27 September 1996
• Docket Number: No. 95-2331,95-2331
• Parties: Linda McKUSICK, Plaintiff-Appellant, v. CITY OF MELBOURNE, FLORIDA, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 478

96 F.3d 478

Linda McKUSICK, Plaintiff-Appellant, v. CITY OF MELBOURNE, FLORIDA, Defendant-Appellee.

No. 95-2331.

United States Court of Appeals, Eleventh Circuit.

Sept. 27, 1996.

Stephen M. Crampton, American Family Association Law Center, Litigation Counsel and Brian Fahling, Tupelo, MS, for appellant.

James L. Reinman, Reinman, Harrell, Graham, Mitchell & Wattwood, Melbourne, Florida, for appellee.

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

Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit Judge.

CARNES, Circuit Judge:

Linda McKusick brought this 42 U.S.C. § 1983 suit against the City of Melbourne, Florida, to challenge a permanent injunction entered by the Florida Circuit Court of Seminole County. The injunction prohibits named parties, and those acting "in concert" with named parties, from engaging in certain expressive activities within a 36-foot buffer zone around an abortion clinic. McKusick sought a declaratory judgment that certain parts of the injunction are unconstitutionally overbroad, and requested that the district court enjoin the City from enforcing the injunction against her and other parties not named in the injunction nor shown by probable cause to be acting in concert with named parties.

The district court denied McKusick's request for a preliminary injunction, relying on the principles of federalism and comity articulated in the Seventh Circuit case of Hoover v. Wagner, 47 F.3d 845 (7th Cir.1995). Thereafter, the district court dismissed McKusick's complaint, holding that it failed to state a claim under § 1983 because the City's actions in enforcing the injunction do not amount to a cognizable "policy" or "custom" subject to challenge under that provision. We hold that the district court erred by dismissing McKusick's complaint for failure to state a claim under § 1983. However, we also hold that the district court did not abuse its discretion in denying, on federalism and comity grounds, the preliminary injunction sought by McKusick; we affirm the district court's denial of that relief.

I. BACKGROUND

On April 8, 1993, the Circuit Court of Seminole County entered the injunction in question. One of its provisions imposes a 36-foot buffer zone around a clinic operated by the Aware Woman Center for Choice, Inc. Named parties and those acting "in concert or participation with them, or on their behalf" are prohibited from "congregating, picketing, patrolling, demonstrating or entering that portion of public right-of-way or private property within thirty-six (36) feet of the property line of the Clinic." The injunction also contains an enforcement provision which provides, in part, that "[l]aw enforcement authorities ... are authorized to arrest those persons who appear to be in willful and intentional disobedience of this injunction."

This injunction has already been the subject of considerable litigation. See Operation Rescue v. Women's Health Ctr., 626 So.2d 664 (Fla.1993), aff'd in part, rev'd in part, sub nom. Madsen v. Women's Health Ctr., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994); Cheffer v. McGregor, 6 F.3d 705 (11th Cir.1993), vacated, 41 F.3d 1421 (1994) (en banc) (subsequently remanded in view of Madsen ). The portions of the injunction that are relevant to this case are reproduced in Madsen, 512 U.S. at ---- - ----, 114 S.Ct. at 2521-22 (does not include the enforcement provision) and Cheffer, 6 F.3d at 706-07 (includes the enforcement provision).

On September 24, 1994, McKusick entered the buffer zone, and began to read her Bible and pray. ¹ McKusick had not been a named party in the underlying state court lawsuit concerning the injunction, and she was "acting independently of any organization or individual named in the Injunction." She was on public property and neither blocked access to the clinic nor spoke to anyone. Nevertheless, a law enforcement officer employed by the City approached McKusick and warned her that she was in violation of a court order by demonstrating in the buffer zone. The officer requested that McKusick leave the buffer zone, and advised her that he would arrest her if she did not comply. McKusick left the buffer zone because she did not want to be arrested. She would like to return to the buffer zone to read her Bible and pray, but has not done so because she fears arrest.

After being threatened with arrest, McKusick brought this § 1983 civil action against the City seeking declaratory and injunctive relief. She alleges that the City unconstitutionally "enforce[s] the Injunction against [McKusick] and other third parties who are neither named parties to the Injunction nor acting in concert with named parties." McKusick further alleges that the injunction, by its terms and as enforced by the City, impermissibly extends to any individual having notice of it. In summary, McKusick claims that the injunction, on its face and as enforced by the City, violates her rights, and the rights of other nonparties, under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.

The United States Supreme Court has previously upheld this injunction, in substantial part, as a permissible content-neutral restriction on speech. See Madsen, 512 U.S. at ----, 114 S.Ct. at 2530. Prior to the Supreme Court's decision in Madsen, a panel of this Court had held that the injunction was a viewpoint-based restriction on speech, see Cheffer, 6 F.3d at 710. The panel's decision was subsequently vacated by the en banc Court, and the case was remanded to the district court in view of the Madsen decision, see Cheffer, 41 F.3d at 1421-22. As a result of the Supreme Court's decision in Madsen, this Court is, of course, obligated to accept that the injunction is content-neutral.

In Madsen, the named parties to the injunction attempted to mount an overbreadth challenge to it by attacking the portion of the injunction that is directed at unnamed parties who might later be found to be acting "in concert" with the named parties. See Madsen, 512 U.S. at ----, 114 S.Ct. at 2530. The Supreme Court held that the named parties lacked standing to bring an overbreadth challenge to the part of the injunction applying to nonparties. Id. However, because McKusick is a nonparty to the underlying litigation, she does have standing to raise the overbreadth question not reached in Madsen.

Nonetheless, the district court denied McKusick's motion for a preliminary injunction, and granted the City's motion to dismiss her complaint for failure to state a claim upon which relief could be granted. ² This appeal followed, and it requires us to address four major issues. First, we consider whether we have subject matter jurisdiction to hear this case. Second, we consider whether the district court erred by dismissing McKusick's complaint for failure to state a claim. Third, we consider whether the injunction is facially overbroad. Finally, we consider whether the district court abused its discretion by relying on principles of federalism and comity to deny McKusick's application for a preliminary injunction.

II. STANDARDS OF REVIEW

This Court reviews a district court's denial of preliminary injunctive relief for abuse of discretion, but reviews jurisdictional issues and other questions of law de novo. See, e.g., Lucero v. Operation Rescue, 954 F.2d 624, 627 (11th Cir.1992). De novo review applies to grants of motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. E.g., Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir.1993).

III. SUBJECT MATTER JURISDICTION

The City contends that this Court lacks subject matter jurisdiction over this appeal because it does not present a justiciable case or controversy. The following statement is included in the City's brief:

The City was not a party to [the] injunction that Ms. McKusick challenges in this appeal. The City has no interest in defending the Injunction. The City maintains that the only appropriate position for it to take is to maintain neutrality and to fulfill its duty to enforce the Injunction unless and until this Court or any other court instructs otherwise. Therefore, the City is not a proper party to defend the Injunction in an adversarial proceeding before this Court.

The City contends that its interests are not truly adverse to McKusick's and that this lawsuit therefore requests the Court to render an impermissible advisory opinion. The City relies on United States National Bank v. Independent Insurance Agents, 508 U.S. 439, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993), Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982), and Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), in support of that contention. McKusick contends that the City's role as enforcer of the injunction renders it the only proper defendant in this lawsuit, because the City is the only party that can be enjoined from enforcing the injunction against McKusick and other similarly situated nonparties.

Federal courts lack the power to issue advisory opinions. The City's citations to United States National Bank, 508 U.S. at 445, 113 S.Ct. at 2178, and Flast, 392 U.S. at 100, 88 S.Ct. at 1952-53, support that basic proposition, as do countless other cases. However, the specific question that basic proposition brings into focus in this case is whether these parties before this Court are sufficiently opposed to prevent any decision that is rendered from being impermissibly "advisory." The City argues that the Princeton case answers that question.

In Princeton, the Supreme Court dismissed an appeal for want of jurisdiction because the State of New Jersey (the only party with standing) took no position whatsoever on the merits of the case. 455 U.S. at 102-03, 102 S.Ct. at 868-69. In contrast, the City in this case has taken, albeit reluctantly, a position on the...