White v. Flemming, Civ. A. No. 70-C-704.

• Decision Date: 10 July 1972
• Docket Number: Civ. A. No. 70-C-704.
• Citation: 344 F. Supp. 295
• Parties: Dorothy Ann WHITE, Plaintiff, v. John FLEMMING, City Attorney of the City of Milwaukee, Wisconsin, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

344 F. Supp. 295

Dorothy Ann WHITE, Plaintiff, v. John FLEMMING, City Attorney of the City of Milwaukee, Wisconsin, et al., Defendants.

Civ. A. No. 70-C-704.

United States District Court, E. D. Wisconsin.

July 10, 1972.

Joseph P. Balistreri, Milwaukee, Wis., for plaintiff.

Joseph H. McGinn, Asst. City Atty., Milwaukee, Wis., for defendants John Flemming and Milwaukee Police Department.

Karl M. Dunst, Asst. Corp. Counsel, Milwaukee, Wis., for defendant Christ T. Seraphim.

OPINION AND ORDER

REYNOLDS, Chief Judge.

This is a § 1983 action in which a female employee of a Milwaukee tavern asserts a constitutional right to sit anywhere in the bar even if that means sitting next to the opposite sex. Jurisdiction is alleged pursuant to Title 28 U.S. C. §§ 1343, 2201, and 2202. A three-judge court is requested pursuant to Title 28 U.S.C. § 2281.

This action was commenced subsequent to the arrest of the plaintiff, Dorothy Ann White, by the Milwaukee Police Department for violation of § 90-25 of the Milwaukee Code of Ordinances:

"90-25. FEMALE EMPLOYEES BEHIND BARS. Any female entertainer, waitress, or female employee of any Class `B' malt beverage or Class `B' intoxicating liquor licensed premises who shall at any time stand or sit at or behind the bar, except for the specific purpose of receiving food or drink orders for delivery to patrons who are not at the bar, or any female entertainer, waitress, or female employee who shall sit at any table or in any booth or elsewhere on the premises with any male patron, shall be punished by a fine not to exceed twenty-five dollars, or in default of payment thereof be committed to the county jail or house of correction of Milwaukee county for not to exceed sixty days or until such fine and costs shall be paid; * * *. * * * The provisions of this section shall not apply to female employees who are members of the immediate family and household of the licensee."

The arrest warrant charged her with unlawfully sitting with a male patron of the Class "B" tavern in which she was employed. The complaint in this action challenges the constitutionality of the Milwaukee ordinance, alleging it to be, on its face, contrary to the Fourteenth Amendment. More specifically, it is alleged that the ordinance deprives plaintiff of both her First Amendment rights and her right to equal protection. In her prayer for relief, plaintiff requests both a declaration of unconstitutionality and the issuance of an injunction. Temporary injunctive relief was requested at the time of the filing of this action. However, I denied such relief at that time, finding both that the possibility of prosecution was "not enough to warrant interference with the orderly administration of the state courts" and that the likelihood of probable success was insufficient. Subsequently Mrs. White was tried in the Milwaukee County Court, and the matter was dismissed on the testimony of the arresting officer. Defendants have now moved for summary judgment on the ground that the cause of action is moot. This motion is denied.

Turning first to plaintiff's request for a three-judge court, it is clear that such a court need not be convened. While for purposes of § 1983 a municipal ordinance suffices for "state law," the lack of statewide significance negates the inference that such a local ordinance is also a "state statute" for purposes of § 2281. Board of Regents v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972).

I turn next to defendants' allegation of mootness. Although this action was apparently triggered by the arrest of plaintiff, it does not follow that her successful defense in state court moots the case before me. Mrs. White in her complaint does not limit her request for relief to simply the single prosecution triggering this action, but rather seeks declaratory and injunctive relief from any prosecution on the basis of § 90-25 now or in the future. There is no evidence that dismissal of the state action against Mrs. White will provide the wide scope of relief sought here. The Wisconsin Supreme Court has specifically upheld the constitutionality of § 90-25. Milwaukee v. Piscuine, 18 Wis. 2d 599, 119 N.W.2d 442 (1963). There is no allegation that Mrs. White's dismissal was based upon a finding of unconstitutionality. Cf. ...