Citizen Action Fund v. City of Morgan City , 172 F.3d 923 ( 1998 )


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  •                         Revised September 16, 1998
    
                          UNITED STATES COURT OF APPEALS
                               For the Fifth Circuit
    
    
    
                                     No. 97-30983
    
    
             Citizen Action Fund d/b/a Louisiana Citizen Action,
    
                                                          Plaintiff-Appellant,
    
    
                                        VERSUS
    
    
                                 City of Morgan City,
    
                                                           Defendant-Appellee.
    
    
    
    
                  Appeal from the United States District Court
                      For the Western District of Louisiana
                                  September 3, 1998
    
    
    Before DeMOSS, PARKER, and DENNIS, Circuit Judges
    
    PER CURIAM:
    
         This is a 42 U.S.C. § 1983 action for damages and declaratory
    
    relief by Citizen Action Fund (Citizen Action), a public interest
    
    organization, against the City of Morgan City.               Citizen Action
    
    alleged that the city violated its rights under the free speech
    
    clause   of    the   First   Amendment    by   threatening   to   enforce   an
    
    ordinance prohibiting uninvited commercial solicitations at private
    
    
    
                                          1
    residences between 5:30 p.m. and 8:30 a.m. if Citizen Action were
    
    to canvass residences during those hours for non-commercial public
    
    environmental and consumer causes.              The district court granted
    
    Morgan   City’s     motion   for      summary     judgment   upholding     the
    
    constitutionality of the ordinance as applied to Citizen Action’s
    
    proposed canvassing activities on the grounds that Citizen Action
    
    could not challenge the city’s unconstitutional application of the
    
    ordinance because Citizen Action also contended that, as correctly
    
    interpreted, the ordinance did not apply to its proposed exercise
    
    of free speech at all.          We reverse and remand the case to the
    
    district court for further proceedings.
    
    
    
                                          I.
    
          Citizen   Action   Fund    is   an   Ohio-based    corporation     doing
    
    business in Louisiana under the name Louisiana Citizen Action.
    
    Citizen Action is a non-partisan organization which engages in
    
    lobbying activities and the education of the public on various
    
    environmental and consumer issues.          Citizen Action uses a grass-
    
    roots approach by canvassing individuals door to door.              It uses
    
    this approach for the purpose of “disseminating information on
    
    matters of public importance to citizen, building political support
    
    for   various     legislative     proposals      and   policies,   obtaining
    
    signatures and memberships, and raising funds to further its
    
    informational and public-interest purposes.”            (Petitioner’s Brief
    
    at 5).
    
                                           2
          In   early   1994,     Citizen     Action     began     investigating   the
    
    possibility of canvassing residents of Morgan City, Louisiana.
    
    Kendall Jackson, the staff director for Louisiana Citizen Action,
    
    communicated with several officials in Morgan City about the
    
    existence    and   content     of    a   city     ordinance     which   regulated
    
    “solicitation” for “the purpose of soliciting orders for the sale
    
    of goods, wares and merchandise.”               (Ordinance No. 90-8, § 9-6).
    
    Mr. Jackson communicated with Morgan City Mayor Tim Matte, City
    
    Attorney Dale Hayes, and Police Chief Danny Dossett about whether
    
    Citizen Action’s canvassing operation would be “solicitation” under
    
    the ordinance and thus subject to the law’s prohibition on such
    
    activities after 5:30 p.m.          Citizen Action wanted to canvass door
    
    to door after 5:30 p.m. because most individuals are not home from
    
    their jobs before that time.1
    
      1
       These provisions of the ordinance provided:
    
      (a) Solicitation, the practice of going in and upon private
      residences in the city by solicitors, peddlers, hawkers,
      itinerant merchants or transient vendors of merchandise not
      having been requested or invited to do so by the owner or
      owners, occupant or occupants of said private residence for
      the purpose of soliciting orders for the sale of goods, wares
      and merchandise and/or disposing of and/or peddling or hawking
      the same without first having applied for and having received
      a city permit from the tax collector to do so, is declared to
      be a nuisance and punishable as a misdemeanor.
                                  * * *
      (c) All permits issued as provided for by this section shall
      be valid between the hours of 8:30 a.m. and 11:30 a.m. and
      1:30 p.m. and 5:30 p.m.      No solicitor, peddler, hawker,
      itinerant merchant or transient vendor shall go in or upon
      private residences other than at the hours stated herein
      unless an appointment has been made by the occupant of a
      private residence for a time other than that as provided
    
                                             3
          Citizen    Action     contended       that   its     activities     did   not
    
    constitute solicitation under the city ordinance and thus that it
    
    should not be prohibited from canvassing Morgan City residents
    
    after 5:30 p.m.    Nonetheless, Kendall Jackson was informed by each
    
    of the Morgan City officials that they interpreted the ordinance as
    
    applicable to the proposed canvassing operation of Citizen Action.
    
    Mr. Jackson was informed by Mayor Matte that the ordinance would be
    
    enforced against Citizen Action unless it could obtain an exemption
    
    from the City Council of Morgan City.2
    
          On March 16, 1995, Citizen Action filed suit against Mayor
    
    Matte   and     Morgan     City,     alleging      that    the   ordinance      was
    
    unconstitutional,        both   as   written    and   as   applied   to    Citizen
    
    Action.3   Although Citizen Action never conducted any door to door
    
    canvassing in Morgan City, the organization contends that the
    
    ordinance was unconstitutionally applied to it because of the
    
    threat of enforcement.          The defendants moved for partial summary
    
    judgment on the constitutionality of the ordinance on its face.
    
    The plaintiff moved for partial summary judgment on both the facial
    
    
    
      herein.
    
    Ordinance 90-8,§ 9-6.
      2
       The punishment established by the ordinance is “a fine not
    exceeding five hundred dollars ($500.00) or imprison[ment] not more
    than six (6) months or by both such fine and imprisonment within
    the discretion of the court.” Ordinance No. 90-8, § 1.
      3
       The district court granted a motion by Citizen Action dismissing
    with prejudice all claims against Mayor Matte.
    
                                            4
    and “as applied” constitutionality of the law.
    
          In   a   telephone     status      conference   with    the   respective
    
    attorneys, the district judge suggested that Citizen Action’s
    
    activities might not be covered by the ordinance as written.               The
    
    judge then told counsel that the city could amend the ordinance in
    
    order to include canvassing operations such as Citizen Action’s.
    
    Shortly thereafter, upon a representation by the city’s attorney
    
    that such      a   change   would   be   forthcoming,   the    district   judge
    
    dismissed the summary judgment motions as moot.              In November 1996,
    
    Morgan City amended its ordinance to add a section making it
    
    applicable to uninvited non-commercial door to door canvassing.4
    
    After the plaintiff filed a supplemental complaint, the parties
    
    subsequently filed new summary judgment motions putting at issue
    
    the constitutionality of both the original and amended ordinances
    
    and the unconstitutional application of the original ordinance.
    
          The district court granted the defendants’ motion for summary
    
    
      4
       The new section of the ordinance stated, in part:
    
      (g) Door-to-door canvassing in or upon private residences, by
      persons who have not been invited to do so by the owner or
      occupant of the residence for the purposes other than the
      solicitation of orders for the sale of goods, wares, and
      merchandise and/or disposing of and/or peddling or hawking the
      same, shall not be subject to the requirements of sub-section
      (e) of this Section.        Persons engaged in door-to-door
      canvassing as described in this sub-section shall be subject
      to the fee and permit requirements, limitations, and penalties
      of sub-sections (b), (c), (d), and (f) of this Section.
    
    Ordinance 90-8, § 9-6(g). Section (e), referred to above, required
    applicant to furnish a performance bond.
    
                                             5
    judgment and denied the summary judgment motion of the plaintiff.
    
    In a memorandum ruling, the district court ruled that the original
    
    ordinance was constitutional both as applied and as written.               In
    
    addition, the district court also ruled that the amended ordinance
    
    was constitutional as written.
    
           In   the   present   appeal,   Citizen   Action   appeals   only   the
    
    district court’s ruling that the original ordinance had not been
    
    applied in violation of Citizen Action’s First Amendment rights.
    
    
    
    
                                          II.
    
           This Court’s standard of review for cases dismissed on a
    
    motion for summary judgment is de novo.             Wallace v. Texas Tech
    
    Univ., 
    80 F.3d 1042
     (5th Cir. 1996).
    
           On appeal, the defendant argues that Citizen Action does not
    
    have standing to challenge the original Morgan City ordinance
    
    because “Citizen Action can point to no federally protected right
    
    of which it was deprived by Morgan City’s ‘threat’ to enforce” the
    
    law.    (Defendant’s Brief at 10).          Apparently this standing issue
    
    was not raised in the district court.           Although new issues cannot
    
    generally be raised on appeal, Boddie v. City of Columbus, 
    989 F.2d 745
    , 751 (5th Cir. 1993), “‘[s]tanding represents a jurisdictional
    
    requirement which remains open to review at all stages of the
    
    litigation.’”      In re Taxable Municipal Bond Securities Litigation,
    
    
    
                                           6
    
    51 F.3d 518
    , 521 (5th Cir. 1995) (quoting National Org. for Women,
    
    Inc. v. Scheidler, 
    510 U.S. 249
    , 255, 
    114 S. Ct. 798
    , 802, 127 L.
    
    Ed. 2d 99 (1994)).
    
         The standing challenge advanced by defendant can be disposed
    
    of easily.     Section 1983 confers no substantive rights but only
    
    provides a cause of action to obtain “redress” for the violation of
    
    federal rights. In other words, one must look somewhere besides 42
    
    U.S.C. § 1983 in order to determine whether a right protected by
    
    federal law has been violated.             Here, the law of the First
    
    Amendment is clear that a statute can be challenged prior to any
    
    enforcement action so long as there is a credible threat of
    
    prosecution.       Virginia v. American Booksellers Association, 
    484 U.S. 383
    , 392-93 (1988); Steffel v. Thompson, 
    415 U.S. 452
    , 459
    
    (1974).      See    also   Chamber   of   Commerce   v.   Federal   Election
    
    Commission, 
    69 F.3d 600
    , 603-04 (D.C. Cir. 1995) (“A party has
    
    standing to challenge, pre-enforcement, even the constitutionality
    
    of a statute if First Amendment rights are arguably chilled, so
    
    long as there is a credible threat of prosecution.”).               Allowing
    
    pre-enforcement challenges to laws that touch upon First Amendment
    
    freedoms is necessary to ensure that no chilling effect on speech
    
    occurs because of a fear of prosecution.        As this court has stated,
    
    “To insist that a person must break the law in order to test its
    
    constitutionality is to risk punishing him for conduct which he may
    
    have honestly thought was constitutionally protected.           Not only is
    
    
                                          7
    this prima facie unfair, but it discourages people from engaging in
    
    protected   activity     and     enforcing    constitutional     rights.”
    
    International Society for Krishna Consciousness v. Eaves, 
    601 F.2d 809
    , 821 (5th Cir. 1979).
    
         In the present case, there is ample evidence in the record to
    
    suggest that even though Citizen Action did not believe it was
    
    covered by the original ordinance, Citizen Action had every reason
    
    to believe that the Morgan City officials interpreted the ordinance
    
    to encompass the plaintiff’s proposed canvassing activities and
    
    that the officials would enforce the ordinance against Citizen
    
    Action and its members if they engaged in those activities.           Given
    
    the fact that Citizen Action’s door to door contact with residents
    
    on environmental and consumer issues is speech protected by the
    
    First Amendment, Citizen Action has standing to challenge the
    
    constitutionality   of   the     original    ordinance   prior   to    any
    
    enforcement action because of the credible threat of prosecution.
    
         Before reaching the question of whether the plaintiff has a
    
    cause of action under Section 1983, one must first address the
    
    antecedent question of whether Citizen Action’s rights under the
    
    First Amendment were violated.      See County of Sacramento v. Lewis,
    
    
    118 S. Ct. 1708
    , 1714 n.5 (1998) (“As in any action under § 1983,
    
    the first step is to identify the exact contours of the underlying
    
    right said to be violated.”).     It is necessary to recall what is at
    
    issue in this appeal.          Citizen Action is only appealing the
    
    
    
                                        8
    district court’s grant of summary judgment on the constitutionality
    
    of the original ordinance “as applied.”       It is not appealing the
    
    grant of summary judgment upholding the constitutionality of the
    
    original ordinance “as written.”       Nor is Citizen Action appealing
    
    the district court’s grant of summary judgment upholding the
    
    constitutionality of the newly amended ordinance “as written.”5
    
    Thus, the issue in the present case is whether Citizen Action’s
    
    rights were violated by the application of the original ordinance.
    
          The answer to this question depends upon a more intricate
    
    formulation of the same question: Can the mere threat of enforcing
    
    the city ordinance against Citizen Action be an unconstitutional
    
    violation of its First Amendment rights, even where the ordinance
    
    itself has been upheld as constitutional?      That is, can threats to
    
    violate constitutional rights be actionable under Section 1983?
    
          The Fifth Circuit has concluded that mere threats are not per
    
    
      5
        The district court ruled that the revised ordinance did not
    place an unacceptable burden upon free speech and was therefore
    constitutional under a time, place, and manner analysis.
    Memorandum Ruling at 22-24.
       As for the original version of the Morgan City ordinance, the
    district court argues that it was constitutional on its face
    because if the revised, more restrictive version of the ordinance
    is constitutional, then the original version must be constitutional
    as well. The court also relied upon Breard v. City of Alexandria,
    
    341 U.S. 622
     (1951), a decision that upheld a total ban on door to
    door solicitation.    While Breard can be distinguished from the
    present case because of the profit-making focus of the solicitation
    at issue there, it is also likely that Breard would not be embraced
    by the Supreme Court of today. See City of Watseka v. Illinois
    Public Action Council, 
    479 U.S. 1048
     (1987) (affirming Seventh
    Circuit decision invalidating a city ordinance that limited
    solicitation to the hours of 9:00 a.m. to 5:00 p.m.).
    
                                       9
    se violations of constitutional rights: “Threats alone are not
    
    enough.    A section 1983 claim only accrues when the threats or
    
    threatening conduct result in a constitutional deprivation.” Lamar
    
    v. Steele, 
    698 F.2d 1286
    , 1286 (5th Cir. 1983) (per curiam).
    
          What threats constitute a constitutional deprivation differs
    
    from issue to issue and from circuit to circuit.           Under the Eighth
    
    Amendment, there is an ongoing dispute as to whether threats by
    
    prison officials against inmates are, by themselves, enough to
    
    establish constitutional violations.        Most of these cases are very
    
    fact specific. Some circuits have held that real threats by prison
    
    guards do confer standing under Section 1983, Burton v. Livingston,
    
    
    791 F.2d 97
    , 100 (8th Cir. 1986), while others have ruled that “it
    
    trivializes the eighth amendment to believe a threat constitutes a
    
    constitutional wrong.”      Gaut v. Sunn, 
    810 F.2d 923
    , 925 (9th Cir.
    
    1987).     The   Fifth   Circuit,   aware   that   not    all   injuries   are
    
    physical, has yet to rule on “whether, absent physical contact,
    
    purely    emotional   injuries   are    cognizable   in   this   Circuit   as
    
    violative of the Eighth Amendment.”         Smith v. Aldingers, 
    999 F.2d 109
    , 110 (5th Cir. 1993) (per curiam).6
    
          Despite these vicissitudes in other areas of constitutional
    
    
      6
       Under the Fourteenth Amendment, this circuit has recognized a
    substantive due process right and a § 1983 remedy for emotional
    harms even in the absence of physical injuries. Petta v. Rivera,
    
    143 F.3d 895
    , 900-01 (5th Cir. 1998) (per curiam). See County of
    Sacramento v. Lewis, 118 S. Ct. at 1714-16 (describing availability
    of substantive due process when injuries are not covered by any
    specific constitutional provision).
    
                                           10
    law, the rights protected by the First Amendment are different.
    
    Threats of unconstitutionally enforcing laws against individuals
    
    can lead to a chilling effect upon speech, silencing voices and
    
    opinions which the First Amendment was meant to protect.             Speaking
    
    of the First Amendment, Justice Brennan’s words in NAACP v. Button
    
    remain the bedrock of the law in this area: “These freedoms are
    
    delicate and vulnerable, as well as supremely precious in our
    
    society.       The threat of sanctions may deter their exercise almost
    
    as potently as the actual application of sanctions.”                 NAACP v.
    
    Button, 
    371 U.S. 415
    , 433 (1963).           See also Virginia v. American
    
    Booksellers Association, 
    484 U.S. 383
    , 393 (1988) (“the alleged
    
    danger    of    this   statute   is,   in   large   measure,   one   of   self-
    
    censorship; a harm that can be realized even without an actual
    
    prosecution”).         As this circuit has recognized, threats affect
    
    individuals’ constitutional freedoms “by causing them to exercise
    
    their first amendment rights less forcefully than they otherwise
    
    would.”    International Society for Krishna Consciousness, 601 F.2d
    
    at 824.    See also 754 Orange Ave., Inc. v. City of West Haven, 
    761 F.2d 105
     (2d Cir. 1985) (holding that city’s threat to enforce its
    
    zoning and licensing ordinances against adult bookstore amounted to
    
    an impermissible prior restraint).
    
         Applying these principles to the present case, we conclude
    
    that Citizen Action’s constitutional rights were infringed by the
    
    threatened enforcement of the Morgan City ordinance against it.
    
    
                                           11
    Given the fact that the original ordinance addressed only the
    
    “soliciting     [of]     orders   for    the    sale   of     goods,      wares    and
    
    merchandise” and that Citizen Action’s public interest activities
    
    in support of environmental and consumer causes were not reasonably
    
    included   within      that   definition,      the   threat    by    the    city    to
    
    prosecute Citizen Action for conduct not made illegal by the
    
    ordinance was an unlawful application of that law to intentionally
    
    deter and prevent the exercise of free speech in violation of the
    
    First Amendment.
    
         The district court erroneously concluded that Citizen Action
    
    had not challenged the Ordinance as applied because “by Citizen
    
    Action’s own allegation the Ordinance did not apply to Citizen
    
    Action.” Memorandum Ruling at 25. Whether Citizen Action believed
    
    that its activities were included within the original ordinance’s
    
    language is not determinative of whether its rights of free speech
    
    were violated.       It is the Morgan City officials’ interpretation of
    
    the ordinance and threats to act on that interpretation that
    
    matter.       Each     city   official    involved     told    the     plaintiff’s
    
    representative        that    Citizen     Action’s      proposed          activities
    
    constituted    “solicitation”      under       the   ordinance      and    that    the
    
    ordinance would be enforced against it.              Thus, the city threatened
    
    to enforce the ordinance in an unconstitutional manner giving rise
    
    to a cognizable action based on an “as applied” constitutional
    
    challenge.     See Steffel v. Thompson, 415 U.S. at 475 (holding
    
    
    
                                             12
    declaratory relief available “when no state prosecution is pending
    
    and   a    federal    plaintiff        demonstrates         a    genuine        threat   of
    
    enforcement     .     .     .    whether         an   attack         is    made    on    the
    
    constitutionality of the statute on its face or as applied”).
    
    Indeed, as Justice Scalia has observed, an “as applied” challenge
    
    exists when “the plaintiff contends that application of the statute
    
    in the particular context . . . in which he proposes to act[] would
    
    be unconstitutional.”            Ada v. Guam Society of Obstetricians, 
    506 U.S. 1011
    , 1011 (1992) (Scalia, J., dissenting from a denial of
    
    certiorari).
    
          We therefore reverse the district court’s grant of summary
    
    judgment dismissing Citizen Action’s § 1983 action based on the
    
    city’s unconstitutional application of the ordinance in violation
    
    of the plaintiff’s First Amendment rights.
    
           The plaintiff seeks declaratory relief, compensatory damages,
    
    and   attorneys’     fees       in   this   lawsuit.        While         the   claims   for
    
    compensatory damages and attorneys’ fees can go forward, we hold
    
    that the claim for declaratory relief is moot.                        In order to grant
    
    declaratory relief, there must be an actual, ongoing controversy.
    
    See Gulf Publishing Co. v. Lee, 
    679 U.S. 45
     (1982) (declaratory
    
    judgment     claim        mooted     after       finding        no    actual,      ongoing
    
    controversy); Ellis v. Dyson, 
    421 U.S. 426
    , 434 (1975) (holding
    
    that Article III and the Declaratory Judgment Act require that
    
    dispute    “must     be    shown     to     be   alive     at    each      stage   of    the
    
    
    
                                                13
    litigation”). As a leading commentator in this field observes, the
    
    Supreme Court “requires that a litigant show that the requested
    
    declaratory or injunctive relief would make a practical difference
    
    if granted.”   1 Sheldon H. Nahmod, Civil Rights and Liberties
    
    Litigation § 5.05, at 374 (3d ed. 1991).   Indeed, the Declaratory
    
    Judgment Act requires that there be “a case of actual controversy”
    
    between the parties.   28 U.S.C. § 2201.   Here, since Morgan City
    
    amended the city ordinance to apply to non-commercial canvassing
    
    activities in addition to commercial solicitation, the original
    
    ordinance has been superseded and, thus, there is no continuing
    
    dispute as to its interpretation.    As a result, the declaratory
    
    relief claim must be dismissed as moot.
    
         The decision of the district court is REVERSED and the case is
    
    REMANDED to the district court for further proceedings consistent
    
    with this opinion.
    
    
    
    
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