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02/17/87 Louis Juluke, Et Al, v. Donald P. Hodel

February 17, 1987

LOUIS JULUKE, ET AL, APPELLANTS

v.

DONALD P. HODEL, SECRETARY OF THE INTERIOR DEPARTMENT, ET AL.; UNITED STATES OF AMERICA

v.

MITCHELL D. SNYDER AND CAROL ANN FENNELLY, APPELLANTS; UNITED

STATES OF AMERICA

v.

MITCHELL D. SNYDER AND CAROL ANN FENNELLY, APPELLANTS 1987.CDC.73



Before: EDWARDS and BORK, Circuit Judges, and SWYGERT,* Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Date Decided: February 17, 1987; As Amended April 2, 1987.

Appeal from the United States District Court for the District of Columbia, Civil Action No. 85-1962.

Appeals from the United States District Court for the District of Columbia, Criminal Nos. 85-0222-01 & 02 and 85-0306-01 & 02.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDWARDS

EDWARDS, Circuit Judge : All three cases that are presently before us on these appeals arise from the same set of events. The appellants in 85-6202 and 85-6203, Snyder and Fennelly, were arrested and convicted for violating federal regulations governing the conduct of demonstrations and prohibiting the placement of parcels on the sidewalk in front of the White House. These appellants seek to overturn their convictions through this appeal. The appellants in 85-5794, four members of the Community for Creative Non-Violence , including Snyder and Fennelly, brought a separate action in the District Court to enjoin the applications of these regulations to their demonstration. The appellants in the civil appeal seek reversal of the District Court's order refusing to enjoin the enforcement of the "structures" and "parcels" regulations limiting demonstrations on the sidewalk in front of the White House. Because of the similarity of facts and legal arguments in all three appeals, the cases were consolidated for purposes of oral argument.

In addition to the appellants' challenges to their convictions and to the denial of injunctive relief, the Government has moved to dismiss the civil action. The Government argues that since, under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), a federal court will not enjoin an ongoing criminal proceeding in a state court, the trial judge in 85-5794 should have dismissed the appellants' civil action which arose after the prosecution of the criminal actions had commenced in 85-6202 and 85-6203. The Government also claims that a portion of the civil action should be dismissed as moot because of the judgment rendered in the criminal case.

We affirm the appellant's convictions, finding that Snyder and Fennelly clearly violated the applicable parcels regulation; on this point, we hold that the regulation is a valid time, place and manner restriction on speech. We also find that the District Court appropriately entertained and proceeded with the civil action in 85-5794, and then properly declined to enter an injunction against the enforcement of the applicable regulations. Finally, we reject the Government's claim that the appellants' civil action should be dismissed, either under Younger or on grounds of mootness. I. BACKGROUND

The appellants in 85-5794 are members of the Community for Creative Non-Violence, which operates a shelter for the homeless in Washington, D.C. On November 4, 1984, President Reagan announced that the federal government would take steps to upgrade the shelter, but, for various reasons, as of June 1, 1985, such actions had not been taken. In an effort to dramatize the situation and obtain relief, the appellants sought to engage in a demonstration in front of the White House. They wished to employ an ancient Irish method of redressing grievances, in which a "plaintiff," having made his request known to a "defendant" of superior rank to that of the "plaintiff" and having waited a reasonable time without result, sits before the door of the "defendant" and waits for justice to be done. The appellants planned to sit in folding chairs just outside of the White House gate daily from 9:00 a.m. to 5:00 p.m. until the President spoke with them and redressed their grievance.

On Friday, June 14, 1985, at 9:00 a.m., three of the appellants, Juluke, Snyder and Fennelly, arrived at the White House gate and asked for an audience with the President. When told that he was not available to meet with them, they unfolded their chairs on the sidewalk and sat in them. Shortly thereafter, U.S. Park Police informed the appellants that federal regulations prohibited the placement of chairs on the White House sidewalk and that, if the chairs were not removed, the appellants would be arrested. Juluke got up, folded his chair, and withdrew. Snyder and Fennelly remained in their chairs and were arrested and charged with violating 36 C.F.R. § 50.19(e)(8)(i) (1986) (the "structures" regulation).*fn1 The defendants were subsequently charged with violating 36 C.F.R. § 50.19(e)(10) (1986) (the "parcels" regulation) as well. *fn2

The appellants returned to the White House sidewalk on June 17 to continue their demonstration, and again were informed that they were in violation of the regulations. Juluke once again withdrew, but Snyder and Fennelly were again arrested and charged with violating the structures and parcels regulations. Meanwhile, four members of CCNV filed a civil action in the District Court on June 17, 1986, seeking to enjoin the enforcement of the structures and parcels regulations. The district judge denied the appellants' application for a temporary restraining order on June 17, 1986, *fn3 and entered judgment against the CCNV members on July 3, 1986. *fn4

The defendants in the criminal actions filed a motion to dismiss that was granted as to the "structures" counts and denied as to the "parcels" counts. *fn5 A trial was held, and the defendants were convicted on the parcels counts, and fined $25 each per count.

The plaintiffs in the civil action have appealed the District Court's ruling on the merits for the defendants. The defendants have filed a motion to dismiss the civil action in this court. The defendants in the criminal cases have appealed their convictions. Because of the similarity of facts and legal arguments, the three appeals were consolidated for purposes of oral argument and decision. II. ANALYSIS

A. Government's Motion to Dismiss

We are first confronted by the Government's motion to dismiss the civil action. Apparently, the Government is seeking to extend the holding of Younger v. Harris *fn6 - that a federal court will not enjoin an ongoing criminal proceeding in state court - to cover the situation in which parallel civil and criminal proceedings take place in federal court. Not only can we find no support for such an extension of Younger, but any such extension would be flatly at odds with the prevailing case law. Furthermore, even under a wholly distorted view of Younger - which would be necessary to ...


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