Roe v. Butterworth

• Decision Date: 10 March 1997
• Docket Number: No. 94-8681-CIV-GONZALEZ.,94-8681-CIV-GONZALEZ.
• Citation: 958 F.Supp. 1569
• Parties: Jane ROE II, Petitioner, v. Robert BUTTERWORTH, Attorney General of the State of Florida, Respondent.
• Court: U.S. District Court — Southern District of Florida

Page 1569

958 F.Supp. 1569

Jane ROE II, Petitioner, v. Robert BUTTERWORTH, Attorney General of the State of Florida, Respondent.

No. 94-8681-CIV-GONZALEZ.

United States District Court, S.D. Florida.

March 10, 1997.

Elliot S. Shaw, Taplin Howard & Shaw, P.A., West Palm Beach, FL, for Plaintiff.

Parker D. Thomson, Thomson, Muraro, Razook & Hart, P.A., Miami, FL, John P. Goshgarian, Florida Attorney General's Office, Dept. of Legal Affairs, Civil Division, Ft. Lauderdale, FL, for Defendant.

GONZALEZ, District Judge.

FINAL ORDER

This Cause has come before the Court upon Petitioner's Motion for Summary Judgment, filed on April 16, 1996, and Respondent's Cross-Motion for Summary Judgment, filed on July 19, 1996. Both motion have been fully briefed and are ripe for review. Additionally, the parties agree that no material factual disputes exist in this case, that the issues presented are entirely questions of law, and that the case is ripe for adjudication. Petitioner's Motion for Summary Judgment, at 1; Respondent's Cross-Motion for Summary Judgment and Supporting Memorandum of Law, at 1 (hereinafter "Respondent's Memorandum").

I. PROCEDURAL BACKGROUND AND FACTS

In a simple two page complaint, Petitioner challenges the constitutionality of Chapter 796, Florida Statutes, and seeks declaratory and injunctive relief against Robert Butterworth, acting as Attorney General of the State of Florida. Petitioner brings her claims under the Fifth and Fourteenth Amendments to the United States Constitution.¹

Petitioner is a former employee of the "most prestigious and famous escort service in south Florida and the United States...." Petitioner's Affidavit (DE 10), ¶ 4. According to Petitioner, during her employment as a call girl, she "dated and engaged in sexual activity for hire with some of the most powerful and well known businessmen in the United States and the World as well as numerous diverse professionals such as doctors, lawyers, reverends and ministers, professors and even State Circuit Court and Federal Judges," most of whom were married. Id., ¶ 5. Petitioner is interested in returning to her career as a prostitute, but has refrained from doing so at the prompting of her attorney, and out of fear of prosecution. Id., ¶ 13.

Florida defines prostitution as "the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses." Fla.Stat. § 796.07(1)(a). "Sexual activity" is defined as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation. . . ." Fla.Stat. § 796.07(1)(d). Section 796.07 also makes it unlawful for any person to "purchase the services of any person engaged in prostitution." Fla.Stat. § 796(2)(h)(i). Violation of Section 796.07 constitutes the commission of a misdemeanor. Fla.Stat. § 796.07(4). The remainder of Chapter 796 deals with other offenses that are related to prostitution.

In her Complaint, Petitioner alleges that sections 796.02 through 796.08 "to the extent they prohibit and make criminal prostitution and acts related thereto criminal, are unconstitutional because they directly violate the Petitioner's Fifth and Fourteenth Amendment rights to due process and equal protection and her fundamental right of privacy, and pursuant to that right[, the right] to control her own reproductive organs whether in a private or commercial transaction." Petitioner's Complaint, ¶¶ 2, 7. Following this Court's denial of Respondent's Motion to Dismiss, and subsequent Motion for Reconsideration, Petitioner filed its Motion for Summary Judgment. Respondent responded with its Cross-Motion for Summary Judgment shortly thereafter.

II. LEGAL STANDARD FOR CONSIDERING A MOTION FOR SUMMARY JUDGMENT

The Court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Celotex Corp., 477 U.S. at 325, 106 S.Ct. at 2553.

After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). According to the plain language of Fed.R.Civ.P. 56(e), the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings," but instead must come forward with "specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356.

Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477 U.S. at 257, 106 S.Ct. at 2514. "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990).² If the evidence advanced by the non-moving party "is merely colorable, or is not significantly probative, then summary judgment may be granted." Anderson, 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511.

III. IS PETITIONER'S CLAIM JUSTICIABLE?

Before this Court may address the constitutional issues raised by Petitioner, it must determine whether a sufficient case or controversy exists to satisfy Article III, § 2 of the United States Constitution, and whether Petitioner has standing to challenge the enforcement of Fla. Stat. § 769.07 (1995).³ A federal court may only "adjudge the legal rights of litigants in actual controversies." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). "[P]ersons 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). As stated by the Supreme Court:

The difference between an abstract question and a "case or controversy" is one of degree, of course, and is not discernible by any precise test. See Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). The basic inquiry is whether the "conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." Railway Mail Assn. v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945); see Evers v. Dwyer, 358 U.S. 202, 203, 79 S.Ct. 178, 179, 3 L.Ed.2d 222 (1958); Maryland Casualty Co. v. Pacific Coal & Oil Co., supra.

Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 297-98, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979).

Petitioner has not been prosecuted, nor is she in immediate threat of prosecution for violating the statute she challenges. However, "it is not necessary that petitioner first expose [herself] to actual arrest or prosecution to be entitled to challenge a statute that [s]he claims deters the exercise of [her] constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974), citing Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). Instead, she may maintain an action so long as she 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. . . ." Athens Lumber Co., Inc. v. Federal Election Commission, 689 F.2d 1006 (11th Cir.1982) (citations omitted), aff'd on reh'g, 718 F.2d 363 (1983), cert. denied, 465 U.S. 1092, 104 S.Ct. 1580, 80 L.Ed.2d 114 (1984).

In this case, Petitioner alleges that she desires to engage in conduct prohibited by § 769.07, and that she currently refrains from doing so out of fear of prosecution. Respondent has indicated that it will continue to enforce the challenged ordinance. Thus, Petitioner is being forced to chose between complying with § 769.07 and suffering economic injury, or facing the risk of prosecution. See American Booksellers Association, Inc. v. Virginia, 792 F.2d 1261, 1264 (4th Cir.1986), superseded, 802 F.2d 691 (4th Cir.1986). In this posture, Petitioner's injury and fear of prosecution is more than "chimeral," Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961), and satisfies the Constitution's requirement that she have "such a personal stake in the outcome of the controversy to assure that concrete adverseness which sharpens the presentation of issues upon which ...