Wilson v. Stocker

• Decision Date: 14 May 1987
• Docket Number: 85-2641 and 85-2736,Nos. 85-2323,No. F,F,s. 85-2323
• Citation: 819 F.2d 943
• Parties: James E. WILSON, Plaintiff-Appellee, v. Cathy STOCKER, in her capacity as District Attorney for Districtour, State of Oklahoma, Defendant, Robert H. Henry, in his capacity as Attorney General for the State of Oklahoma, Defendant-Appellant. James E. WILSON, Plaintiff-Appellee, v. Cathy STOCKER, in her capacity as District Attorney for Districtour, State of Oklahoma, Defendant-Appellant, Robert H. Henry, in his capacity as Attorney General for the State of Oklahoma, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 943

819 F.2d 943

55 USLW 2643

James E. WILSON, Plaintiff-Appellee, v. Cathy STOCKER, in her capacity as District Attorney for

District No. Four, State of Oklahoma, Defendant,

Robert H. Henry, in his capacity as Attorney General for the

State of Oklahoma, Defendant-Appellant.

James E. WILSON, Plaintiff-Appellee, v. Cathy STOCKER, in her capacity as District Attorney for

District No. Four, State of Oklahoma, Defendant-Appellant,

Robert H. Henry, in his capacity as Attorney General for the

State of Oklahoma, Defendant.

Nos. 85-2323, 85-2641 and 85-2736.

United States Court of Appeals, Tenth Circuit.

May 14, 1987.

John Galowitch, Asst. Atty. Gen., State of Okl., Oklahoma City, Okl., for defendant-appellant Turpen.

William S. Flanagan, Asst. Dist. Atty., El Reno, Okl., for defendant-appellant Stocker.

Mark E. Hammons (C. Elaine Hammons, with him on the brief) of Hammons & Hammons, El Reno, Okl., for plaintiff-appellee.

Before SEYMOUR, McWILLIAMS, and BARRETT, Circuit Judges.

SEYMOUR, Circuit Judge.

James Wilson was arrested and detained by the El Reno, Oklahoma, police department for distributing anonymous campaign literature in violation of a state statute. While the matter was still under investigation and before formal charges had been filed, Wilson brought this suit under 42 U.S.C. Sec. 1983 (1982). Wilson asserted that the statute infringed his First Amendment rights and sought declaratory and injunctive relief, naming as defendants in their official capacities the District Attorney for the district in which the arrest took place and the Oklahoma Attorney General. ¹ The district court granted Wilson's motion for summary judgment, ruling that the challenged statute was facially overbroad. The court also awarded Wilson attorney's fees under 42 U.S.C. Sec. 1988 (1982) and directed that half of the total award be assessed against each defendant.

On appeal, the Attorney General asserts that no case or controversy exists between his office and Wilson, ² that the statute at issue is constitutional, and that the court erred in awarding attorney's fees against him. The District Attorney asserts prosecutorial immunity as a bar to the award of attorney's fees against her or, alternatively, asserts that special circumstances made such an award unjust in this case. We are not persuaded by any of defendants' arguments and affirm the district court's decision.

I. CASE OR CONTROVERSY

The Attorney General argues vigorously that this suit does not create a case or controversy as to him because his office played no part in Wilson's arrest, did not threaten Wilson with enforcement of the statute, and allegedly did not intend to enforce the statute against him. This argument misperceives both the relevant Supreme Court cases and an attorney general's role in suits of this nature.

Under Article III of the Constitution, a suit seeking declaratory relief is only justiciable in federal court when "the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). "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." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 297, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979). In making this evaluation, courts examine the immediacy of the threat of harm to a plaintiff in light of the nature of the statute the plaintiff seeks to challenge. See, e.g., Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974). A plaintiff who shows that his "fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative," Babbitt, 442 U.S. at 302, 99 S.Ct. at 2310, and who challenges "those specific provisions of state law which have provided the basis for threats of criminal prosecution against him," Steffel, 415 U.S. at 459, 94 S.Ct. at 1216, need not suffer actual arrest or prosecution to establish a case or controversy, Babbitt, 442 U.S. at 302, 99 S.Ct. at 2311.

In this case, Wilson was arrested for violating the statute he now challenges. Moreover, he has presented sworn testimony that he wishes to continue the conduct which precipitated his arrest, but has not done so for fear of rearrest. Compare Steffel, 415 U.S. at 459-60, 94 S.Ct. at 1216 (controversy exists if plaintiff desires to continue conduct barred by statute), with Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969) (no controversy when plaintiff's reason for violating statute no longer exists). Thus, Wilson asserts not only the threat of future prosecution, but an ongoing injury resulting from the statute's chilling effect on his desire to exercise his First Amendment rights.

Notwithstanding Wilson's showing under the applicable law, the Attorney General argues that no controversy exists vis-a-vis his office because he has taken no action to enforce that statute against Wilson. Given Wilson's demonstration of appreciable injury, the question turns on whether the Attorney General's legal interest is substantial and adverse to that of Wilson.

We begin our analysis of this issue by pointing out that the Supreme Court has often found a case or controversy between a plaintiff challenging the constitutionality of a statute and an enforcement official The legal principle underlying these decisions is the familiar doctrine that "[a] suit against a state officer in his official capacity is, of course, a suit against the State." Id. at 1701 n. 2. Thus a controversy exists not because the state official is himself a source of injury, but because the official represents the state whose statute is being challenged as the source of injury. See Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114 (1985). In sum, we conclude that a plaintiff challenging the constitutionality of a state statute has a sufficiently adverse legal interest to a state enforcement officer sued in his representative capacity to create a substantial controversy when, as here, the plaintiff shows an appreciable threat of injury flowing directly from the statute. ³

                who has made no attempt to prosecute the plaintiff under the law at issue.  In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Court found a justiciable controversy between doctors subject to prosecution under criminal abortion statutes and the state attorney general, "despite the fact that the record does not disclose that any one of [the doctors] has been prosecuted, or threatened with prosecution."   Id. at 188, 93 S.Ct. at 745.  Recently, in Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), the Court stated that "[t]he conflict between state officials empowered to enforce a law and private parties subject to prosecution under that law is a classic 'case' or 'controversy' within the meaning of Art. III."    Id. 106 S.Ct. at 1704
                

II. THE CHALLENGE TO THE STATUTE

Wilson was arrested after he had passed out unsigned handbills opposing the election of a candidate for the state senate. Upon Wilson's arrival at the police station, he was presented with a copy of the state statute prohibiting the distribution of anonymous campaign literature. The relevant part of the current version ⁴ of that statute states:

"It shall be unlawful for any person, firm, corporation, partnership, organization, or association to broadcast, write, print, post, or distribute or cause to be broadcast, written, printed, posted, or distributed a statement, circular, poster, or advertisement which is designed to influence the voters on the nomination or election of a candidate or to influence the voters on any constitutional or statutory amendment or on any other issue in a state, county, city, or school district election, or to influence the vote of any member of the Legislature, unless there appears in a conspicuous place upon such circular, poster, or advertisement, or within a broadcast statement, either the name and address of the person if an individual, or the name and address of the president, chairman, or secretary, or of two officers of the organization, if an organization. Persons violating this act shall be guilty of a misdemeanor. Violators shall include the persons placing the order for unlawful statements, circulars, posters or advertisements and the persons who authorized the same."

Okla.Stat. tit. 26, Sec. 15-111 (Supp.1985) (emphasis added).

The district court agreed with Wilson's assertion that, under Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), the statute is overbroad because it infringes upon the right to speak and write freely about political issues by criminalizing anonymous political speech. On appeal, the Attorney General argues that the above statute requires identification only of the person paying for or ordering the material. He then argues that the law as he construes it is unlike the one at issue in Talley and is constitutional under the rationale applied by the Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). We are not persuaded.

In determining the scope of a statute, a court must begin with the statutory language itself. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Nevada Power Co. v. Watt, 711 F.2d 913, 920 (10th Cir.1983) When the terms of the statute are clear and unambiguous, that language is controlling absent rare and exceptional circumstances. Howe v. Smith, 452 U.S. 473, 483, 101 S.Ct. 2468, 2475, 69 L.Ed.2d 171 (1981); Nevada Power, 711 F.2d at 920. As is clear from the statutory language italicized above, the provision at issue here unambiguously makes it ...