Miller v. Jeff Mitchell *

• Decision Date: 17 March 2010
• Docket Number: No. 09-2144.,09-2144.
• Citation: 598 F.3d 139
• Parties: MaryJo MILLER, Individually and on behalf of her minor daughter, MM; Jami Day, Individually and on behalf of her minor daughter GK; Jane Doe, Individually and on behalf of her minor daughter, ND v. Jeff MITCHELL *, In his official capacity as District Attorney of Wyoming County, Pennsylvania, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

598 F.3d 139

MaryJo MILLER, Individually and on behalf of her minor daughter, MM; Jami Day, Individually and on behalf of her minor daughter GK; Jane Doe, Individually and on behalf of her minor daughter, ND v. Jeff MITCHELL ^*, In his official capacity as District Attorney of Wyoming County, Pennsylvania, Appellant.

No. 09-2144.

United States Court of Appeals Third Circuit.

Argued Jan. 15, 2010.

Opinion filed: March 17, 2010.

COPYRIGHT MATERIAL OMITTED

Michael J. Donohue, Esquire (Argued) A. James Hailstone, Esquire. Kreder Brooks, Hailstone & Ludwig, Scranton PA, for Appellant.

Valerie A. Burch, Esquire, American Civil Liberties Foundation of Pennsylvania, Harrisburg, PA, Seth Kreimer, Esquire, University of Pennsylvania School of Law, Mary Catherine Roper, Esquire American Civil Liberties Union of Pennsylvania, Philadelphia, PA, Sara J. Rose, Esquire, Witold J. Walczak, Esquire (Argued), American Civil Liberties Union, Pittsburgh, PA, for Appellees.

Marsha L. Levick, Esquire, Philadelphia, PA, for Amicus Appellee.

Before: AMBRO, CHAGARES, and STAPLETON, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

In 2008, the District Attorney of Wyoming County in Pennsylvania presented teens suspected of "sexting" with a choice either attend an education program designed by the District Attorney in conjunction with two other agencies or face felony child pornography charges. Plaintiffs brought suit to enjoin the District Attorney from bringing criminal charges in retaliation for their refusal to attend the education program—an act they allege is constitutionally protected—and immediately filed a motion for preliminary injunctive relief. The District Court granted their motion. While the case was on appeal, the District Attorney determined that he would not file criminal charges against two of the three plaintiff minors. As to the remaining minor, Nancy Doe, and her mother, Jane Doe, we agree with the District Court that they have shown a likelihood of success on the merits of their constitutional retaliation claims, and therefore they are entitled to preliminary injunctive relief. Accordingly, we affirm.

I. Factual and Procedural Background

Plaintiffs MaryJo Miller, Jami Day, and Jane Doe, mothers of, respectively, plaintiffs Marissa Miller, Grace Kelly, and Nancy Doe, ¹ filed suit against the District Attorney of Wyoming County, in his official capacity only, alleging retaliation in violation of their constitutional rights. The allegations in their complaint center on the District Attorney's investigation and threatened prosecution of "sexting" by minors, and his requirement that plaintiffs attend an education program to avoid prosecution on child pornography charges.

"Sexting, " as defined by plaintiffs, is "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet." In October 2008, school officials in the Tunkhannock, Pennsylvania, School District discovered photographs of semi nude and nude teenage girls, many of whom were enrolled in their district, on several students' cell phones.² The officials learned that male students had been trading these images over their cell phones, and turned the phones over to the Wyoming County District Attorney's Office. George Skumanick, then District Attorney, began an investigation.

In November 2008, Skumanick stated publicly to local newspaper reporters and an assembly at Tunkhannock High School that students possessing "inappropriate images of minors" could be prosecuted under Pennsylvania law for possession or distribution of child pornography, 18 Pa. Cons.Stat. § 6312, ³ or criminal use of a communication facility, 18 Pa. Cons.Stat. § 7512.⁴ A few months later, Skumanick sent a letter to the parents of between 16 and 20 students⁵—students on whose cell phones the pictures were stored and students appearing in the photographs—threatening to bring charges against those who did not participate in what has been referred to as an "education program":

[Child's Name] has been identified in a police investigation involving the possession and/or dissemination of child pornography. In consultation with the Victims Resource Center and the Juvenile Probation Department, we have developed a six to nine month program which focuses on education and counseling. Ifyou[r] son/daughter successfully completes this program!,] no charges will be filed and no record of his/her involvement will be maintained. We have scheduled a meeting with all of the identified juveniles and their parents to discuss the program in more detail and to answer your questions. Following the meeting you will be asked to participate in the program. Participation in the program is voluntary. Please note, however, charges will be filed against those that do not participate or those that do not successfully complete the program.

The education program was divided into a Female Group and Male Group. The "Female Group" syllabus lists among its objectives that the participants "gain an understanding of what it means to be a girl in today's society, both advantages and disadvantages."

In the first session, students are assigned to write "a report explaining why you are here, " "[w]hat you did, " "[w]hy it was wrong, " "fd]id you create a victim? If so, who?, " and how their actions "affectfed] the victimf,][t]he school!, and] the community." The first two sessions focus on sexual violence, and the third on sexual harassment. The fourth session is titled "Gender identity-Gender strengths, " and the fifth "Self Concept, " which includes a "Gender Advantages and Disadvantages" exercise.

At the group meeting scheduled by the letter, held on February 12, 2009, Skumanick repeated his threat to bring felony charges unless the children submitted to probation, paid a $100 program fee, and completed the education program successfully. One parent, whose daughter had appeared in a photo wearing a bathing suit, asked how his child could be charged with child pornography based on that picture. Skumanick responded that she was posing "provocatively." When plaintiff Marissa Miller's father asked Skumanick who decided what "provocative" meant, Skumanick refused to answer and reminded his audience he could charge all of the minors with felonies, but instead was offering the education program. He told Mr. Miller, "[T]hese are the rules[. I]f you don't like them, too bad."

He then asked the parents to sign an agreement assigning the minors to probation and to participation in the program. Only one parent did so. Skumanick gave the other parents one week to sign.

Before the meeting, Skumanick had shown plaintiff MaryJo Miller and her ex-husband the two-year-old photograph of their daughter, in which Marissa Miller and Grace Kelly, 12 or 13-years-old at the time, are shown from the waist up wearing white, opaque bras. Marissa was speaking on the phone, while Grace was making a peace sign. Despite Ms. Miller's protests that her daughter and friend were merely being "goof balls" and were not naked, Skumanick claimed the image constituted child pornography because they were posed "provocatively." He promised to prosecute them on felony child pornography charges if they did not agree to his conditions and attend the proposed program.

After the meeting, Skumanick showed Jane Doe the photograph of her daughter Nancy, taken about a year earlier. In the photograph, Nancy is wrapped in a white, opaque towel, just below her breasts, appearing as if she just had emerged from the shower.

Eleven days later, on February 23, an administrator from Juvenile Court Services wrote the parents to inform them of an appointment scheduled for the following Saturday, February 28, at the Wyoming County Courthouse, "to finalize the paper-work for the informal adjustment." All of the parents and minors, except plaintiffs in this case, agreed to the conditions. The parties do not allege, and the record does not contain evidence of, any further communication between Skumanick and plaintiffs.

Plaintiffs filed suit on March 25, 2009, and immediately sought a temporary restraining order ("TRO") enjoining the District Attorney from initiating criminal charges against plaintiffs for the photographs. The District Court held a hearing the following day with both sides represented, and allowed the District Attorney to file a post-hearing brief in opposition. The District Court granted the requested relief on March 30, 2009, and the District Attorney timely filed an interlocutory appeal.

While this case was on appeal, Skumanick was defeated by Jeff Mitchell in the November 2009 election. Mitchell took office in January 2010. We refer to Skumanick when detailing the events underlying the lawsuit.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331. We agree with the parties that the order titled a temporary restraining order by the District Court (a generally non-appealable order) was in effect a preliminary injunction (an appealable order) because it was entered for an indeterminate period of time after notice to the defendant and an adversary hearing. Under Fed.R.Civ.P. 65(b)(2), TROs expire 10 days⁶ after issuance, subject to extension. See In re Arthur Treacher's Franchise Litig., 689 F.2d 1150, 1155 n. 7 (3d Cir.1982) (noting that we "will look beyond terminology to the actual content purport, and effect of that which may otherwise be described as a temporary restraining order or as a preliminary injunction"). Therefore, we have appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

Ordinarily, we use a three-part standard to review a District Court's grant of a preliminary injunction: we review the Court's findings of fact for clear error, its conclusions of law de novo, and the ultimate decision to grant the preliminary injunction for abuse of discretion. McTer-nan v. City of York, 577 F.3d 521, 526 (3d Cir.20...