Simmons v. Conger

United States Court of Appeals,
Eleventh Circuit.
No. 94-6808.
Glynnie B. SIMMONS, Concerned Citizens for a Caring Family Court,
Inc., Plaintiff-Appellees,
v.
Paul S. CONGER, Jr., in his individual capacity and as Circuit
Judge, 6th Judicial District, of the State of Alabama, Defendant-
Appellant.
July 3, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV91-C-2220-W), U.W. Clemon, Judge.
Before BIRCH and BARKETT, Circuit Judges, and HENDERSON, Senior
Circuit Judge.
BIRCH, Circuit Judge:
This is an appeal by a former circuit court judge in Alabama
from the issuance of a permanent injunction against him, as well as
his successors in office, permanently enjoining them from excluding
members of the public from any divorce trial convened in the Sixth
Judicial Circuit in Alabama, absent a prior judicial determination
that their public interest in a particular trial is outweighed by
a specifically identified compelling state interest. The district
court also awarded the plaintiffs one hundred dollars in nominal
damages against the state court judge in both his individual and
official capacities. For the reasons that follow, we REVERSE the
damages judgment, VACATE the permanent injunction, and REMAND with
instructions to enter judgment for the state court judge.
I. BACKGROUND
Concerned Citizens for a Caring Family Court, Inc. ("CCCFC"),
one of the named plaintiffs in this case, was organized as a
nonprofit organization under Alabama law and was incorporated in
June of 1990; plaintiff Glynnie B. Simmons is one of the founders
of CCCFC. Judge Paul S. Conger, Jr., the defendant, was an Alabama
Circuit Court Judge in the Sixth Judicial District in Tuscaloosa
County until January 1995, at which time his term of office ended.1
Judge Conger's primary duties were as a domestic relations and
juvenile court judge, although he had the general power of an
Alabama circuit judge to hear other matters assigned to him. All
domestic relations cases in Alabama are nonjury and, as a general
matter, juvenile proceedings before the family court are closed to
spectators. See Ala.Code § 12-15-65(a) (1995).
Some background information on CCCFC is helpful to place the
events at issue in this case in the proper context. CCCFC
allegedly was formed "to focus attention on the laws and procedures
governing the Juvenile and Family Courts and to promote
constructive change to enable the residents to be served by a
judicial system that is fair and just in its decisions and
efficient and economical in its operations." R1-11, Exh. E at 1.
Most, if not all, of the founding principals in CCCFC had been
litigants in Judge Conger's court or had a child or close relative
who had been a litigant in Judge Conger's court. The record
indicates that these individuals were unhappy about the outcome of
their proceedings and generally disapproved of his decisions and
his courtroom demeanor.
1
Judge Conger was first elected in 1982 and was succeeded in
1995 by Judge Herschel T. Hamner. This fact is noteworthy
because the district court's permanent injunction runs against
Judge Conger and his "successors in office and responsibilities."
R1-24-1.
Simmons testified at trial that her grievance with Judge
Conger was personal and stemmed from her disagreement with the
2
Judge Conger's decision in a case involving her daughter. In
order to achieve their stated goals, CCCFC operated what Simmons
referred to as a "court monitoring program." R2-30-53. As part of
this program, CCCFC members went to court to lend "moral support"
to family court litigants, particularly first-time litigants. Id.
at 54. Interestingly, none of the "information" that allegedly was
collected in these monitoring sessions was ever written down, and
Judge Conger's court was the only one that was ever monitored. Not
only did CCCFC monitor Judge Conger's court, but also they
initiated proceedings against him before both the Alabama Judicial
Inquiry Commission and the Alabama Court of the Judiciary; their
complaints were based on his rulings, courtroom demeanor, and
alleged practice of closing certain family court hearings to the
public. Both of these actions were dismissed as being without
merit.3 Nonetheless, they helped further the considerable
2
Two other founding members of CCCFC testified at the bench
trial about their personal grievances with Judge Conger. Roselyn
Jordan stated that she was "mad as hell at Paul Conger" as a
result of his decision in her domestic relations case involving
her former husband's abuse of her daughter. R2-30-86. Fay Price
testified that she had a grievance with Judge Conger concerning
how her case before him was resolved. R2-30-22. Price also
testified that she backed Judge Conger's political opponent in
the election due to her personal grievance with Judge Conger.
Id. at 23-24.
3
This is not to say that no harm occurred. Simmons
testified that CCCFC and its followers went by caravan to
Montgomery, Alabama, to present their petition to the Judicial
Inquiry Commission. R2-30-71. In addition, she testified that
CCCFC issued a press release, setting forth their unsubstantiated
charges against Judge Conger, prior to any hearing being held on
the merits of their allegations. Id. Roselyn Jordan testified
that she and some other CCCFC members went to New York and
animosity that already existed between Judge Conger and the members
of CCCFC.4
The conduct at issue in this case occurred on April 15, 1991,
during a hearing that Judge Conger held in a divorce and child
custody case, Gosa v. Gosa, Civil Action No. DR90-374. Simmons
attended this hearing as a spectator and sat through the morning
session without incident.5 Upon resumption of the hearing after
lunch, counsel for Wilmon Gosa addressed the Court:
MR. NOLEN [counsel for Mr. Gosa]: Your Honor, if I may at
this point, the great majority of the allegations that we have
heard this morning were not in the pleadings and are certainly
surprising to us. In light of that, we would ask that only
the parties and counsel and whatever witness is testifying be
allowed in court at this time.
THE COURT: You are asking for Mrs. Simmons to be excused?
MR. NOLEN: Yes, sir, we are.
THE COURT: Mrs. Simmons, at the request of the Defendant, I
will ask you to please excuse yourself.
appeared on an episode of the "Geraldo" show about bad judges and
bad decisions; on the show, Jordan spoke about her personal
experience in a domestic relations matter before Judge Conger.
4
In fact, this is the second time that we have heard an
appeal in a case involving Judge Conger. An advocacy group,
known as the Association for Children for Enforcement of Support,
Inc. ("ACES"), brought the first case based on an incident in
which a lawyer for a party told an ACES member that she could not
observe a child custody proceeding before Judge Conger. See
Association for Children for Enforcement of Support, Inc. v.
Conger, 899 F.2d 1164 (11th Cir.1990) (affirming dismissal of
case because (1) dispute was not ripe, given that exclusion was
done by a lawyer and not the judge, (2) plaintiffs lacked
standing, and (3) plaintiffs did not state a cause of action).
Although ACES and CCCFC are separate organizations, and there is
little in the record regarding overlap in membership between the
organizations, the groups both monitored Judge Conger's
courtroom, and both were actively opposed to Judge Conger
politically.
5
Simmons was the only spectator at the hearing.
MRS. SIMMONS: You are asking me to leave?
THE COURT: Yes, ma'am, I sure am.
MRS. SIMMONS: I want that on the record that you are—
THE COURT: The counsel for the Defendant, Mr. Richard Nolen,
has asked that Mrs. Simmons, who is a member of Concerned
Citizens, be asked to leave this courtroom because his client
objects to her presence in the courtroom.
MRS. SIMMONS: I am just monitoring the Court because every
citizen has a right to sit in the court.
MR. NOLEN: Well, ma'am, on behalf of my client, I would like
to ask you to leave.
MRS. SIMMONS: I will leave if the Judge makes it official.
I will not leave on your asking.
THE COURT: Yes, ma'am, I am asking you to leave. At the
request of the Defendant, I am asking you to leave, please,
ma'am.
MRS. SIMMONS: I would like to have a notarized statement to
that effect. I will pick it up next week.
THE COURT: Yes ma'am. We will see about that.
(Whereupon, Mrs. Simmons exits the courtroom).
R1-11, Exh. A at 4-6.
Simmons claims that she was in court that day to lend moral
support to Marcia Gosa. Significantly, after Simmons left the
courtroom, Marcia Gosa's lawyer stated that neither he nor his
client had any problem with her being asked to leave the courtroom.
Therefore, both sides were in favor of Simmons being removed from
the courtroom for the afternoon session. The record indicates that
Wilmon Gosa's lawyer likely wanted to have Simmons removed because
Wilmon Gosa, who was on the witness stand at the time, began being
questioned on cross-examination about alleged extramarital conduct
and children possibly born outside of the marriage. Judge Conger
testified at trial that "[i]f Mr. Gosa felt that the testimony
there might threaten his job, economically that has a direct impact
on his ability to support his children." R2-30-138.
On September 19, 1991, Simmons and CCCFC filed their complaint
in district court in this case, in which they sought declaratory
and injunctive relief under 42 U.S.C. § 1983. Simmons claimed that
her exclusion from court in the Gosa proceeding, as well as what
she called Judge Conger's "policy and practice6 of excluding
members of CCCFC and the general public from proceedings in his
court," deprived her and CCCFC of their First and Fourteenth
Amendment rights of access to judicial proceedings and association.
R1-1-4.
Judge Conger answered that his exclusion of Simmons was done
pursuant to section 12-21-9 of the Alabama Code, which states:
In all civil cases sounding in damages involving the
question of rape, assault with intent to ravish, seduction,
divorce or any other case where the evidence is vulgar,
obscene or related to the improper acts of the sexes and tends
to debauch the morals of the young, the presiding judge shall
have the right, in his discretion and on his own motion, or on
motion of plaintiffs or defendants or their attorneys, to hear
and try the case after clearing the courtroom of all or any
portion of the audience whose presence is not necessary.
Ala.Code § 12-21-9 (1995) (emphasis added). The case proceeded to
6
Interestingly, Simmons admits that the Gosa case is the
only instance in which she was asked to leave Judge Conger's
courtroom. R2-30-75. We fail to see how this one incident
constitutes what Simmons and CCCFC characterize in their
complaint as Judge Conger's "policy and practice" of exclusion.
R1-1-4. The record indicates that other members of CCCFC were
excluded from Judge Conger's courtroom on other occasions, but
those exclusions occurred either because the CCCFC members were
witnesses affected by the exclusionary rule, or because the
proceedings involved a juvenile and were closed as a matter of
Alabama law. We view these latter instances as wholly unrelated
to the incident complained of in this case, and therefore they do
not aid the plaintiffs in establishing proof of any "policy or
practice."
trial, and a one-day bench trial was held in the Northern District
of Alabama on December 2, 1992. Almost twenty months later, the
district court issued its Memorandum Opinion and Final Judgment and
Permanent Injunction, both dated July 29, 1994. Although the
district court expressly stated that it was avoiding the
constitutional issues presented, it nonetheless found that Judge
Conger had "abused his discretion under federal common law and
Title 12-21-9." R1-23-9. Based on this finding, the district
court permanently enjoined Judge Conger and his successors "from
excluding plaintiffs and members of the public from any divorce
trial convened in the Sixth Judicial Circuit of Alabama in the
absence of a prior judicial determination, based on factual
findings, that their interests in attending the trials are
outweighed by a specifically identified compelling state interest."
R1-24-1-2.
In addition, the district court awarded Simmons and CCCFC one
hundred dollars in nominal damages, recoverable from Judge Conger
"individually and as Circuit Judge of the Sixth Judicial District
of the State of Alabama." Id. at 2. On appeal, Judge Conger
raises three issues, whether: (1) federal common law can be
created by a district judge to control attendance and procedures in
a state court when there is a state statute that governs, and the
court avoids addressing the federal constitutional issues; (2) the
district court should have abstained from deciding a matter
involving the discretionary decisions of a state court judge acting
pursuant to a state statute, the constitutionality of which the
plaintiffs did not challenge; and (3) this matter should be
certified to the Alabama Supreme Court, in order for it to
interpret section 12-21-9 of the Alabama Code, which guided Judge
Conger's conduct in this case.
II. DISCUSSION
The district court awarded both nominal damages and
injunctive relief; these two issues will be addressed separately.
On appeal, we review the district court's conclusions of law de
novo. Worthington v. United States, 21 F.3d 399, 400 (11th
Cir.1994). The district court's application of the law to the
facts also is subject to de novo review. Massaro v. Mainlands
Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1475 (11th Cir.1993),
cert. denied, --- U.S. ----, 115 S. Ct. 56, 130 L. Ed. 2d 15 (1994).
A. Nominal Damages
"We review a district court's award of damages under a
clearly erroneous standard." Davis v. Marsh, 807 F.2d 908, 913
(11th Cir.1987) (per curiam). In this case, the district court
ordered Judge Conger to pay one hundred dollars in nominal damages.
The damages were recoverable against him both in his individual and
official capacities. The district court clearly erred in awarding
damages against Judge Conger in his individual capacity because he
is entitled to absolute judicial immunity from damages in this
section 1983 case. It also erred in awarding damages against Judge
Conger in his official capacity, given that such relief is barred
by the Eleventh Amendment.
The Supreme Court has set forth a two-part test for
determining when a judge is entitled to immunity from money damages
liability when sued under section 1983. Stump v. Sparkman, 435
U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). The first part of
the test is whether the judge dealt with the plaintiff in a
judicial capacity. Id. at 362, 98 S.Ct. at 1107. If the judge was
not dealing with the plaintiff in a judicial capacity, then there
is no immunity. If the judge was dealing with the plaintiff in his
judicial capacity, however, the second part of the test is whether
the judge acted in the " "clear absence of all jurisdiction.' "
Id. at 357, 98 S.Ct. at 1105 (quoting Bradley v. Fisher, 80 U.S.
(13 Wall.) 335, 351, 20 L. Ed. 646 (1872).
In this case, it is clear that Judge Conger was dealing with
Simmons in his judicial capacity. The incident at issue occurred
while Judge Conger was hearing a domestic relations case. He
excluded Simmons from his courtroom during a proceeding that was
properly before him, and he was acting in his official capacity in
excluding her. Therefore, Judge Conger's actions satisfy the first
part of the test for determining the applicability of judicial
immunity. See Rolleston v. Eldridge, 848 F.2d 163, 164 (11th
Cir.1988); Harris v. Deveaux, 780 F.2d 911, 914 (11th Cir.1986).
Furthermore, Judge Conger satisfies the second part of the
Stump test. He clearly had jurisdiction over the Gosa matter, and
there is no allegation to the contrary. Therefore, because Judge
Conger's conduct at the Gosa hearing satisfies both prongs of the
Stump test for judicial immunity from damages liability under
section 1983, the district court's damages judgment against him in
his individual capacity is reversed. 7 As for the damages awarded
7
Aside from the legal error on the judicial immunity issue,
we are troubled that the court awarded damages in this case,
because all that the plaintiffs sought was declaratory and
against Judge Conger in his official capacity, this relief is
barred by the sovereign immunity of his then employer, the State of
Alabama. "[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit
against the official's office," and, "[a]s such, it is no different
from a suit against the State itself." Will v. Michigan Dep't of
State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45
(1989) (holding in a damages action that neither a state nor its
officials acting in their official capacities are "persons" subject
to suit under section 1983). Therefore, the award of damages
against Judge Conger in his official capacity is also reversed.
B. Permanent Injunction
On appeal, the standard of review for the grant of a
permanent injunction is abuse of discretion. Centel Cable
Television Co. v. Thos. J. White Dev. Corp., 902 F.2d 905, 910
(11th Cir.1990). Unlike a damages suit under section 1983,
"judicial immunity is not a bar to prospective injunctive relief
against a judicial officer acting in her judicial capacity."
Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S. Ct. 1970, 1981, 80
L. Ed. 2d 565 (1984). Simply because prospective injunctive relief
is available against a judge in a section 1983 action, however,
does not mean that such equitable relief is appropriate.
In this case, Simmons and CCCFC allege that their First
Amendment rights of access to judicial proceedings and association,
as applied to the states through the Fourteenth Amendment, were
injunctive relief. There is no prayer for damages in their
complaint.
violated when Judge Conger excluded Simmons from the Gosa hearing.
Judge Conger, in his answer to this lawsuit, explained that he was
exercising his discretion under Alabama Code § 12-21-9, which by
its terms permits him to do exactly what he did in this case.
Since he was acting pursuant to a state statute, logic dictates
that Simmons and CCCFC's challenge in this case is not really to
Judge Conger's actions, but rather to the constitutionality of
section 12-21-9.
Simmons and CCCFC, however, repeatedly have emphasized, both
in their briefs and at oral argument, that they are not challenging
the constitutionality of the statute. Rather, they explicitly
state that they are challenging Judge Conger's actions in this
specific case, which they allege violated their First Amendment
rights. Since Judge Conger was acting pursuant to a presumptively
constitutional statute, Simmons and CCCFC fail to state a claim
upon which relief can be granted.8 One cannot allege a
constitutional violation by a judge, who was doing precisely what
a statute permits him to do, without challenging the
constitutionality of the statute under which he was acting.9 This
8
Given our decision, we need not address the abstention and
certification issues raised by Judge Conger.
9
We do not disagree with Judge Barkett's reading of Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65
L. Ed. 2d 973 (1980), as stating, in general terms, that a judge
acting pursuant to a state statute is limited by the constraints
of the Constitution and may not exercise his discretion under
that statute in a unconstitutional fashion. See Richmond
Newspapers, 448 U.S. at 562 n. 4, 100 S. Ct. at 2820 n. 4.
Plaintiffs therefore must allege either (1) that the state
statute is unconstitutional or (2) that a particular judge's
actions pursuant to that statute violated the limits placed upon
him by the Constitution. In this case, Simmons and CCCFC assert
that they are not challenging the constitutionality of the state
leads us to conclude that the district court abused its discretion
in entering a permanent injunction against Judge Conger and his
successors.10 Therefore, the permanent injunction entered by the
district court is vacated, and the district court is instructed on
remand to enter judgment for Judge Conger on this claim.
III. CONCLUSION
The district court erred in awarding nominal damages against
Judge Conger in his individual capacity because he is entitled to
judicial immunity from money damages liability in this section 1983
case. In addition, the district court erred in awarding nominal
damages against Judge Conger in his official capacity because that
relief is barred by the Eleventh Amendment. Lastly, the district
court abused its discretion in entering a permanent injunction,
regarding the exclusion of the public from divorce trials, against
Judge Conger and his successors. Therefore, the damages judgment
statute. However, they do not allege that Judge Conger's actions
constituted an unconstitutional exercise of authority under the
state statute. What they challenge is not Judge Conger's
judgment in deciding to close his courtroom, but rather the fact
that he has the authority to exclude anyone at all. This
challenge is an attack not on the judge's exercise of his
discretionary function, but rather on the underlying statute that
affords him his discretion. Given that Simmons and CCCFC
expressly deny that they are making such a challenge, and that
they have not alleged that Judge Conger's actions constituted an
unconstitutional exercise of his authority under the statute,
they have failed to state a valid claim.
10
We need not address fully the reasoning employed by the
district court in granting the injunction. In its memorandum
opinion, the district court states that "[w]ithout reaching the
constitutional issue, this Court holds that the exclusion
violates federally protected common law rights." R1-23-1. Since
the only claims that Simmons and CCCFC make are constitutional
claims, it is puzzling that the district court could avoid
addressing them and still find that they were entitled to relief.
is REVERSED, the permanent injunction is VACATED, and the case is
REMANDED to the district court with instructions to enter judgment
for Judge Conger.
BARKETT, Circuit Judge, specially concurring:
I agree with the majority's ultimate conclusion that the
decision of the district court in this case should be reversed for
many of the reasons stated by the majority. I write only because
I believe the majority is wrong when it states that "[o]ne cannot
allege a constitutional violation by a judge, who was doing
precisely what a statute permits him to do, without challenging the
constitutionality of the statute under which he was acting."1 See
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 562 n. 4, 100
S. Ct. 2814, 2820 n. 4, 65 L. Ed. 2d 973 (1980) (plurality opinion).
Although the majority recognizes in footnote 9 that "a judge
acting pursuant to a state statute is limited by the constraints of
the Constitution and may not exercise his discretion under that
statute in a unconstitutional fashion," it nonetheless concludes
that the plaintiffs have failed to state a claim. The majority
characterizes the plaintiffs' claim not as a challenge to "Judge
Conger's judgment in deciding to close his courtroom, but rather
the fact that he has the authority to exclude anyone at all." I
believe the plaintiffs in this case are challenging, rather, Judge
1
The state statutes in Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980),
and the instant case permit, but do not require, trial courts to
close court proceedings. If Judge Conger had been mandated by
state law to close the divorce proceeding, I would find
persuasive the majority's conclusion that "logic dictates that
Simmons and CCCFC's challenge in this case is not really to Judge
Conger's actions, but rather to the constitutionality of section
12-21-9."
Conger's "policy" of summarily closing his courtroom as an
unconstitutional exercise of his authority.2
In order to ascertain the nature of the plaintiffs' claim, one
must understand the nature of the underlying right supporting such
claim. The plaintiffs are seeking the type of procedural
protections surrounding the qualified right of access to judicial
proceedings guaranteed by the First Amendment, and first
articulated by the Supreme Court in Richmond Newspapers.3 The
plaintiffs in both Richmond Newspapers and this case challenged not
the trial court's ultimate "authority to exclude anyone at all,"
but merely the manner in which the judge exercised such authority.
2
The majority implies in footnote 6 that Simmons and CCCFC
fail to state a claim because they allege only one incident in
which Judge Conger excluded Simmons from the courtroom, which the
majority considers as insufficient proof that Judge Conger had a
"policy and practice" of exclusion. Alleging a policy or custom,
however, is relevant only if the § 1983 claim is brought against
a local governmental body. See Arnold v. Board of Education of
Escambia County Alabama, 880 F.2d 305, 310 (11th Cir.1989).
Municipal accountability is not at issue in this case. If
"policy and practice" has any relevancy, it is to the question of
whether Judge Conger's successor is similarly excluding the
public from his courtroom, of which no allegation has been made.
3
Had we reached the merits of Simmons' and CCCFC's action,
we would be called upon to determine whether to extend to civil
divorce proceedings the constitutional safeguards surrounding the
right of access established in Richmond Newspapers. There the
Court found a limited right of access to judicial proceedings,
not an absolute right: "[A] trial judge [may], in the interest
of the fair administration of justice, impose reasonable
limitations on access to a trial." 448 U.S. at 581 n. 18, 100
S. Ct. at 2830 n. 18. The Court required a balancing of the
competing constitutional interests involved—the public's First
Amendment interest in open proceedings as against the criminal
defendant's right to a fair trial—and held that "[a]bsent an
overriding interest articulated in findings, the trial of a
criminal case must be open to the public." Id. at 581, 100 S.Ct.
at 2829. Simmons and CCCFC are seeking similar relief in this
case, arguing that Judge Conger was constitutionally allowed to
exclude persons from his courtroom only after conducting a
Richmond Newspapers balancing of the interests involved.
In their complaint, Simmons and CCCFC specifically contend that
Judge Conger did not make any order or finding balancing the
interest of the public to attend and the interest of the
husband to have a closed hearing. Judge Conger made no
finding that the denial of public access served an important
governmental interest and that there was no less restrictive
way to serve that governmental interest.
In fact, the relief sought by Simmons and CCCFC was to enjoin Judge
Conger "from excluding members of CCCFC and the general public from
court proceedings unless, after notice and hearing, he finds a
proper, overriding interest in favor of closure." This seems to me
to be an attack on Judge Conger's "exercise of his discretionary
function," not a claim that the statutory grant of such discretion
is invalid per se. Thus, I believe plaintiffs' claim that Judge
Conger infringed their First Amendment right of access to judicial
proceedings states a valid constitutional claim.4
Ultimately, although I believe that plaintiffs otherwise
stated a valid claim, I do have reservations as to whether a
"genuine and present controversy, not merely a possible or
conjectural one" exists in this case. See Gully v. First Nat. Bank
in Meridian, 299 U.S. 109, 111-13, 57 S. Ct. 96, 97, 81 L. Ed. 70
4
Indeed, this constitutional claim is similar to that
presented in Nowicki v. Cooper, 56 F.3d 782 (7th Cir.1995), cert.
denied, --- U.S. ----, 116 S. Ct. 753, 133 L. Ed. 2d 700 (1996), in
which a paralegal challenged a state family-court judge's policy
of not allowing him to attend or record custody hearings because
he was neither a party to the proceedings nor an attorney for
either of the parties. The plaintiff claimed that the judge's
actions, although authorized by Wisconsin law, Wis.Stat. §§
757.70, 767.19(2), violated several federal rights. Nowicki, 56
F.3d at 783. The Seventh Circuit held that to the extent the
plaintiff alleged that the judge's "policy deprives him of the
limited right, ... held implicit in the First Amendment, to
observe trials. ... his suit is not frivolous" and was
erroneously and prematurely dismissed by the district court. Id.
at 785 (citing Richmond Newspapers, 448 U.S. at 580 & n. 17, 100
S. Ct. at 2829 & n. 17).
(1936). Judge Conger is retired and no longer in a position to
injure the plaintiffs or the public by excluding them from court
proceedings, and his alleged "past wrongs do not in themselves
amount to that real and immediate threat of injury necessary to
make out a case or controversy." City of Los Angeles v. Lyons, 461
U.S. 95, 103, 103 S. Ct. 1660, 1666, 75 L. Ed. 2d 675 (1983). Even if
Judge Conger's "successors" are substituted as defendants in an
attempt to save this action from mootness, I do not believe that
the relief sought—injunctive relief—is warranted in this case.
Injunctive relief against Judge Conger's successors is
inappropriate because the threatened harm is merely speculative,
i.e., we would have to assume that the successor judges would
5
impose a similar "policy" of exclusion. Notwithstanding that I
think the plaintiffs brought a cognizable constitutional claim
under Richmond Newspapers and its progeny, the permanent injunction
5
We previously affirmed the dismissal of an action
challenging Judge Conger's "policy" of excluding observers from
child support hearings because the threatened injury was too
speculative, and the case not ripe for adjudication:
[A]ppellants' claims must be based on what they predict
will happen as a result of Judge Conger's policy should
they attempt, at some time in the future, to enter
Judge Conger's courtroom during a support hearing.
This is plainly the type of hypothetical case that we
should avoid deciding. We do not generally decide
cases based on a party's predicted conduct.... [W]e
are faced only with an unofficial "policy" announced in
an informal setting. We simply cannot know whether
Judge Conger will enforce this policy until he actually
does so.
Association for Children for Enforcement of Support, Inc. v.
Conger, 899 F.2d 1164, 1166 (11th Cir.1990) (citations
omitted) (emphasis added). In the present case, it has not
even been alleged that the successor judge has a policy of
exclusion, much less that there is an impending threat of
enforcement of such a policy.
should be vacated because this case no longer presents a
"likelihood of substantial and immediate irreparable injury," an
element requisite to any grant of equitable relief. O'Shea v.
Littleton, 414 U.S. 488, 501-03, 94 S. Ct. 669, 679, 38 L. Ed. 2d 674
(1974).