Association for Children for Enforcement of Support, Inc. v. Conger

TJOFLAT, Chief Judge:

The Association for Children for Enforcement of Support, Inc. (ACES) and Judy Hayes appeal the district court’s dismissal of this case. Because ACES and Ms. Hayes failed to present a case or controversy or to state a claim upon which relief could be granted, we affirm.

I.

The district court dismissed this case on the pleadings; therefore, we must accept as true the facts alleged in the appellants’ complaint. It contains the following allegations:

ACES is a nonprofit corporation organized under the laws of Ohio but with over 300 members in Alabama and over 100 members in Tuscaloosa, Alabama. One of ACES’s operations is a court-monitoring program, through which ACES seeks to ascertain whether child-support laws are being properly enforced by the courts. As part of this program, ACES members attend as many child-support hearings as possible.

From February 27, 1987 to January 15, 1988, Alabama Circuit Court Judge Paul S. Conger, Jr., of the Sixth Judicial District, and appellee herein, allowed one observer to attend each case involving child support. On January 15, 1988, Judge Conger held a support hearing involving Mrs. Spangler, who is also a member of ACES. Ms. Hayes, President of ACES of Tuscaloosa, attempted to attend the proceedings with Mrs. Spangler, but Mr. Spangler’s attorney informed Ms. Hayes that she could not enter the courtroom. After the hearing, Judge Conger informed Ms. Hayes that he would no longer allow any observers, including ACES members, at child-support hearings. ACES attempted to settle the matter informally with Judge Conger, but to no avail.

On August 23, 1988, ACES and Ms. Hayes filed a complaint in federal district court, alleging that Judge Conger’s policy violated their right to attend judicial proceedings, as guaranteed by the first and fourteenth amendments. Judge Conger moved the court either to abstain from deciding the case or to dismiss it for failure to state a claim upon which relief could be granted. The district court granted Judge Conger’s motion, holding that the constitutional issues could be avoided by permitting Alabama courts to construe the ostensible basis of authority for Judge Conger’s policy: Ala.Code § 12-21-9 (1975). Citing Railroad Commission v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the district court abstained from entertaining the case and dismissed the case without prejudice. We affirm on other grounds.

II.

Although we find several reasons for dismissing this case, we think that the district court improperly based its dismissal on Pullman abstention. The Pullman question never should have been reached because appellants have not alleged facts sufficient to constitute a case or controversy, as required by article III of the Constitution, or to state a claim upon which relief can be granted. Appellants’ allegations fail article Ill’s case or controversy requirement on two counts: first, the case is not ripe for judicial determination, and second, the appellants do not have standing. We address the ripeness and standing questions in that order.

It is axiomatic that federal courts should avoid premature adjudication of abstract or hypothetical disputes. See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). To determine whether a case is ripe for adjudication, we must look at two factors: “ ‘the fitness of the issues for judicial decision’ and ‘the hardship to the parties of withholding court consideration.’ ” See Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 201, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983) (quoting Abbott, 387 U.S. at 149, 87 S.Ct. at 1515).

This case is clearly not fit for judicial decision. Even accepting all of the appellants’ allegations as true, we can find no allegation of conduct on the part of the appellee, Judge Conger, that resulted in the purported deprivation of the appellants’ first and fourteenth amendment rights. Ms. Hayes was not excluded from the hearing by Judge Conger; rather, the complaint alleges only that a third party, Mr. Spangler’s attorney, told Ms. Hayes that she could not enter the courtroom. There is no indication that Judge Conger ordered the courtroom cleared or was in any way responsible for the conduct of Mr. Spangler's attorney.

Thus, appellants’ 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. Of course, “[i]f the injury is certainly impending, that is enough.” Rail Reorganization Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 358, 42 L.Ed.2d 320 (1974) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923)). In this case, however, we 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.

Furthermore, waiting to adjudicate the appellants’ constitutional claims until Judge Conger actually excludes the appellants from support hearings will not place a substantial burden on the parties. In fact, given the tenuous nature of a fourteenth amendment claim based on the conduct of a private party, see infra, at page 1166, requiring the appellants to wait until Judge Conger excludes them from the courtroom saves all of the parties the expense of prosecuting and defending a frivolous claim. Because this case is not yet fit for judicial determination, and because withholding consideration of the case will not create a hardship for the parties, we think that this case is not ripe and should be dismissed.

If the appellants were instead to point to the attorney’s conduct as the source of the constitutional violation, they would lack article III standing to bring this cause of action against Judge Conger. Without completely immersing ourselves in the bog of article III standing, we simply note that one of the requirements of standing, traceability, is not present in this case. As the Supreme Court said in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the plaintiff must show that “the asserted injury [was] the consequence of the defendants’ actions, or that prospective relief will remove the harm.” Id. at 505, 95 S.Ct. at 2208. The appellants in this case have not made such a showing. According to the appellants, the injury resulted not from Judge Conger’s conduct, but from the conduct of an independent third party. Moreover, none of the appellants’ allegations allow us to conclude that prospective relief (i.e., restraining Judge Conger) will prevent such conduct by an independent third party as occurred in this case.

Finally, we note that even if appellants had standing, we would affirm the district court’s dismissal because appellants failed to allege a claim upon which relief could be granted. We reiterate that the appellants complain of an injury that resulted from the conduct of a private attorney, not from the conduct of Judge Conger. The appellants’ constitutional claim is based on the first amendment as applied to the states through the fourteenth amendment, but the Supreme Court has repeatedly stated that private action is immune from the restrictions of the fourteenth amendment. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). By complaining of a purported fourteenth amendment violation resulting from private conduct, the appellants have failed to state a claim upon which relief can be granted.

III.

For the foregoing reasons, we affirm the order of the district court dismissing this case.

AFFIRMED.