Miller Ex Rel. MM v. Mitchell

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-2144

MARYJO MILLER,

Individually and on behalf of her minor daughter, MM;

JAMI DAY, Individually and on behalf of her

minor daughter GK;

JANE DOE, Individually and on behalf of her minor

daughter, ND

v.

JEFF MITCHELL * , In his official capacity

as District Attorney of Wyoming County, Pennsylvania,

Appellant

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 3-09-cv-00540)

District Judge: Honorable James M. Munley

*

Pursuant to Federal Rule of Appellate Procedure 43(c)(2),

District Attorney Jeff Mitchell was substituted for former

District Attorney George Skumanick as appellant in this case.

Argued January 15, 2010

Before: AMBRO, CHAGARES, and

STAPLETON, Circuit Judges

(Opinion filed: March 17, 2010)

Michael J. Donohue, Esquire (Argued)

A. James Hailstone, Esquire

Kreder, Brooks, Hailstone & Ludwig

220 Penn Avenue, Suite 200

Scranton, PA 18504-0000

Counsel for Appellant

Valerie A. Burch, Esquire

American Civil Liberties Foundation of Pennsylvania

105 North Front Street, Suite 225

Harrisburg, PA 17101-0000

Seth Kreimer, Esquire

University of Pennsylvania School of Law

3400 Chestnut Street

Philadelphia, PA 19104-0000

Mary Catherine Roper, Esquire

American Civil Liberties Union of Pennsylvania

P.O. Box 40008

Philadelphia, PA 19106-0000

2

Sara J. Rose, Esquire

Witold J. Walczak, Esquire (Argued)

American Civil Liberties Union

313 Atwood Street

Pittsburgh, PA 15213-0000

Counsel for Appellees

Marsha L. Levick, Esquire

Juvenile Law Center of Philadelphia, Suite 400

The Philadelphia Building, 4th Floor

1315 Walnut Street

Philadelphia, PA 19107-0000

Counsel for Amicus Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

In 2008, the District Attorney of Wyoming County in

Pennsylvania presented teens suspected of “sexting” with a

choice: either attend an education program designed by the

District Attorney in conjunction with two other agencies or face

felony child pornography charges. Plaintiffs brought suit to

enjoin the District Attorney from bringing criminal charges in

retaliation for their refusal to attend the education program—an

3

act they allege is constitutionally protected—and immediately

filed a motion for preliminary injunctive relief. The District

Court granted their motion. While the case was on appeal, the

District Attorney determined that he would not file criminal

charges against two of the three plaintiff minors. As to the

remaining minor, Nancy Doe, and her mother, Jane Doe, we

agree with the District Court that they have shown a likelihood

of success on the merits of their constitutional retaliation claims,

and therefore they are entitled to preliminary injunctive relief.

Accordingly, we affirm.

I. Factual and Procedural Background

Plaintiffs MaryJo Miller, Jami Day, and Jane Doe,

mothers of, respectively, plaintiffs Marissa Miller, Grace Kelly,

and Nancy Doe,1 filed suit against the District Attorney of

Wyoming County, in his official capacity only, alleging

retaliation in violation of their constitutional rights. The

allegations in their complaint center on the District Attorney’s

investigation and threatened prosecution of “sexting” by minors,

and his requirement that plaintiffs attend an education program

to avoid prosecution on child pornography charges.

“Sexting,” as defined by plaintiffs, is “the practice of

sending or posting sexually suggestive text messages and

1

The District Court granted the motion of “Nancy Doe” and

“Jane Doe” to proceed under pseudonyms.

4

images, including nude or semi-nude photographs, via cellular

telephones or over the Internet.” In October 2008, school

officials in the Tunkhannock, Pennsylvania, School District

discovered photographs of semi-nude and nude teenage girls,

many of whom were enrolled in their district, on several

students’ cell phones.2 The officials learned that male students

had been trading these images over their cell phones, and turned

the phones over to the Wyoming County District Attorney’s

Office. George Skumanick, then District Attorney, began an

investigation.

In November 2008, Skumanick stated publicly to local

newspaper reporters and an assembly at Tunkhannock High

School that students possessing “inappropriate images of

minors” could be prosecuted under Pennsylvania law for

possession or distribution of child pornography, 18 Pa. Cons.

Stat. § 6312,3 or criminal use of a communication facility, 18 Pa.

2

The facts are gleaned from plaintiffs’ complaint, the

evidentiary hearing, and the District Court’s comprehensive

opinion.

3

Section 6312, titled “[s]exual abuse of children,” makes it

a crime to “cause[ ] or knowingly permit[ ] a child under the age

of 18 years to engage in a prohibited sexual act . . . if such

person knows, has reason to know or intends that such act may

be photographed, videotaped, depicted on computer or filmed.”

18 Pa. Cons. Stat. § 6312(b).

5

Cons. Stat. § 7512.4 A few months later, Skumanick sent a letter

to the parents of between 16 and 20 students 5 —students on

whose cell phones the pictures were stored and students

appearing in the photographs—threatening to bring charges

against those who did not participate in what has been referred

to as an “education program”:

[Child’s Name] has been identified in a police

investigation involving the possession and/or

dissemination of child pornography. In

consultation with the Victims Resource Center

and the Juvenile Probation Department, we have

developed a six to nine month program which

focuses on education and counseling. If you[r]

son/daughter successfully completes this

program[,] no charges will be filed and no record

of his/her involvement will be maintained.

We have scheduled a meeting with all of the

4

Section 7512 prohibits the use of a communication facility

“to commit, cause or facilitate the commission or the attempt

thereof of any crime which constitutes a felony . . . .” 18 Pa.

Cons. Stat. § 7512(a).

5

Skumanick asserts that the program was offered to 13 girls

and 3 boys, but plaintiffs’ complaint alleges the letters were sent

to approximately 20 students.

6

identified juveniles and their parents to discuss

the program in more detail and to answer your

questions. Following the meeting you will be

asked to participate in the program. Participation

in the program is voluntary. Please note,

however, charges will be filed against those that

do not participate or those that do not successfully

complete the program.

The education program was divided into a Female Group

and Male Group. The “Female Group” syllabus lists among its

objectives that the participants “gain an understanding of what

it means to be a girl in today’s society, both advantages and

disadvantages.”

In the first session, students are assigned to write “a

report explaining why you are here,” “[w]hat you did,” “[w]hy

it was wrong,” “[d]id you create a victim? If so, who?,” and

how their actions “affect[ed] the victim[,] [t]he school[, and] the

community.” The first two sessions focus on sexual violence,

and the third on sexual harassment. The fourth session is titled

“Gender identity-Gender strengths,” and the fifth “Self

Concept,” which includes a “Gender Advantages and

Disadvantages” exercise.

At the group meeting scheduled by the letter, held on

February 12, 2009, Skumanick repeated his threat to bring

felony charges unless the children submitted to probation, paid

7

a $100 program fee, and completed the education program

successfully. One parent, whose daughter had appeared in a

photo wearing a bathing suit, asked how his child could be

charged with child pornography based on that picture.

Skumanick responded that she was posing “provocatively.”

When plaintiff Marissa Miller’s father asked Skumanick who

decided what “provocative” meant, Skumanick refused to

answer and reminded his audience he could charge all of the

minors with felonies, but instead was offering the education

program. He told Mr. Miller, “[T]hese are the rules[. I]f you

don’t like them, too bad.”

He then asked the parents to sign an agreement assigning

the minors to probation and to participation in the program.

Only one parent did so. Skumanick gave the other parents one

week to sign.

Before the meeting, Skumanick had shown plaintiff

MaryJo Miller and her ex-husband the two-year-old photograph

of their daughter, in which Marissa Miller and Grace Kelly, 12

or 13-years-old at the time, are shown from the waist up wearing

white, opaque bras. Marissa was speaking on the phone, while

Grace was making a peace sign. Despite Ms. Miller’s protests

that her daughter and friend were merely being “goof balls” and

were not naked, Skumanick claimed the image constituted child

pornography because they were posed “provocatively.” He

promised to prosecute them on felony child pornography

charges if they did not agree to his conditions and attend the

8

proposed program.

After the meeting, Skumanick showed Jane Doe the

photograph of her daughter Nancy, taken about a year earlier.

In the photograph, Nancy is wrapped in a white, opaque towel,

just below her breasts, appearing as if she just had emerged from

the shower.

Eleven days later, on February 23, an administrator from

Juvenile Court Services wrote the parents to inform them of an

appointment scheduled for the following Saturday, February 28,

at the Wyoming County Courthouse, “to finalize the paperwork

for the informal adjustment.” All of the parents and minors,

except plaintiffs in this case, agreed to the conditions. The

parties do not allege, and the record does not contain evidence

of, any further communication between Skumanick and

plaintiffs.

Plaintiffs filed suit on March 25, 2009, and immediately

sought a temporary restraining order (“TRO”) enjoining the

District Attorney from initiating criminal charges against

plaintiffs for the photographs. The District Court held a hearing

the following day with both sides represented, and allowed the

District Attorney to file a post-hearing brief in opposition. The

District Court granted the requested relief on March 30, 2009,

and the District Attorney timely filed an interlocutory appeal.

While this case was on appeal, Skumanick was defeated

9

by Jeff Mitchell in the November 2009 election. Mitchell took

office in January 2010. We refer to Skumanick when detailing

the events underlying the lawsuit.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.

§ 1331. We agree with the parties that the order titled a

temporary restraining order by the District Court (a generally

non-appealable order) was in effect a preliminary injunction (an

appealable order) because it was entered for an indeterminate

period of time after notice to the defendant and an adversary

hearing. Under Fed. R. Civ. P. 65(b)(2), TROs expire 10 days 6

after issuance, subject to extension. See In re Arthur Treacher’s

Franchise Litig., 689 F.2d 1150, 1155 n.7 (3d Cir. 1982) (noting

that we “will look beyond terminology to the actual content,

purport, and effect of that which may otherwise be described as

a temporary restraining order or as a preliminary injunction”).

Therefore, we have appellate jurisdiction pursuant to 28 U.S.C.

§ 1292(a)(1).

Ordinarily, we use a three-part standard to review a

District Court’s grant of a preliminary injunction: we review the

Court’s findings of fact for clear error, its conclusions of law de

novo, and the ultimate decision to grant the preliminary

6

After the order in this case, the time limit was extended

from 10 days to 14 days. See Fed. R. Civ. P. 65(b)(2).

10

injunction for abuse of discretion. McTernan v. City of York,

577 F.3d 521, 526 (3d Cir. 2009). However, when First

Amendment rights are at issue, we “must conduct an

independent examination of the factual record as a whole.” Id.

III. Preliminary Considerations

Before reviewing the grant of the injunction, we address

two threshold arguments raised by the District Attorney on

appeal. First, he argues that, given the existence of an ongoing

state juvenile informal adjustment proceeding, we must abstain

from entertaining plaintiffs’ suit. Second, he argues that his

promise made on appeal not to prosecute Miller or Day renders

their case moot. We address each argument in turn.

A. Abstention

Under Younger v. Harris, 401 U.S. 37 (1971), federal

courts must abstain in certain circumstances from exercising

jurisdiction over a claim where resolution of that claim would

interfere with an ongoing state proceeding. We exercise plenary

review over whether the requirements for abstention have been

met. Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d

399, 408 (3d Cir. 2005).

According to the District Attorney, the offer of the

education program as an alternative to prosecution was proposed

under the informal adjustment procedure in 42 Pa. Cons. Stat.

11

§ 6323, and therefore a state criminal proceeding was pending

against plaintiffs when they filed their complaint in federal

court. This argument fails on two grounds.

First, while informal adjustment had been offered by the

District Attorney, it had not begun because informal adjustment

requires the consent of the parents and the minor. See Pa. Cons.

Stat. § 6323(b)(2); Commonwealth v. J.H.B., 760 A.2d 27, 32

(Pa. Super. Ct. 2000) (“Whatever [informal adjustment]

procedure is undertaken flows from the consent of the child and

his parent.”); Commonwealth v. C.L., 963 A.2d 489, 493 (Pa.

Super. Ct. 2008) (“[T]he fee imposed could not be an informal

adjustment as that term is intended by § 6323 because [the

minor] did not consent to the fee.”); see also Haw. Hous. Auth.

v. Midkiff, 467 U.S. 229, 238–39 (1984) (“Younger is not a bar

to federal court action when state judicial proceedings have not

themselves commenced.”).7 Indeed, the District Attorney

argued in his brief to the District Court that “no prosecution has

been initiated” and “charges . . . have yet to be brought.”

“Absent any pending proceeding in state tribunals, . . .

7

See also Doran v. Salem Inn, Inc., 422 U.S. 922, 930–31

(1975) (affirming a preliminary injunction against future

criminal prosecutions, and holding that Younger did not apply

because there was no pending state court proceeding); Steffel v.

Thompson, 415 U.S. 452, 454 (1974) (where “a state

prosecution has been threatened, but is not pending,” federal

declaratory relief is available).

12

application . . . of Younger abstention w[ould be] clearly

erroneous.” Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992)

(emphasis in original).

Second, even assuming an informal adjustment had

begun, Younger abstention is appropriate “only when (1) there

are ongoing state proceedings that are judicial in nature; (2) the

state proceedings implicate important state interests; and (3) the

state proceedings afford an adequate opportunity to raise federal

claims.” Kendall v. Russell, 572 F.3d 126, 131 (3d Cir. 2009)

(citation omitted). That is not the case here.

Informal adjustment is not “judicial in nature,” but a

diversion away from the judicial system to a “public or private

social agency.” 42 Pa. Cons. Stat. § 6323(a)(1). It “invokes the

court’s social service and supervisory resources without

implicating the court’s formal and coercive powers, including

the power to commit the child to custody or confinement.”

J.H.B., 760 A.2d at 32; see also id. (describing informal

adjustment as “a preliminary pre-petition procedure to provide

assistance, counseling[,] and supervision, where the behavior is

either socially disruptive (but not criminal) or where the

delinquency has not created major or serious consequences”).

Most importantly, the informal adjustment procedures provide

no opportunity to raise federal claims (or, for that matter, any

legal challenges). Therefore, Younger abstention is

inappropriate here.

13

B. Mootness

In his appellate brief, Skumanick stated that he “has

determined that he will bring no criminal charges against

Appellees[] Miller and Kelly,” and “[t]he claims of Miller and

Kelly are therefore moot.” Appellant’s Br. at 4. At oral

argument, counsel for Mitchell confirmed that charges would

not be brought against the two minors. Oral Arg. Tr. at 3.

While it is curious that the District Attorney did not

withdraw his appeal as to these two minors and their mothers

and consent to a permanent injunction, Mitchell’s counsel

committed at oral argument to making formal the District

Attorney’s new position. Id. at 3–4. We accept counsel’s

representation to us, and agree that this appeal as to the minors

Marissa Miller and Grace Kelly, and their mothers, MaryJo

Miller and Jami Day, is mooted by the District Attorney’s

agreement to provide their requested relief. See DeJohn v.

Temple Univ., 537 F.3d 301, 308–09 (3d Cir. 2008). Thus, our

analysis focuses only on the preliminary injunction as it applies

to plaintiffs Nancy and Jane Doe.

IV. Discussion

A party seeking a preliminary injunction must satisfy the

traditional four-factor test: (1) a likelihood of success on the

merits; (2) he or she will suffer irreparable harm if the

injunction is denied; (3) granting relief will not result in even

14

greater harm to the nonmoving party; and (4) the public interest

favors such relief. Child Evangelism Fellowship of N.J. Inc. v.

Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004).

We agree with the District Court’s analysis of irreparable

harm, harm to the non-moving party, and the public interest, see

Miller v. Skumanick, 605 F. Supp. 2d 634, 646–47 (M.D. Pa.

2009), and therefore focus our discussion, as did the parties, on

the first factor, likelihood of success on the merits.8 At this

stage, we “generally do[] not go into the merits any farther than

is necessary to determine whether the moving party established

a likelihood of success.” Child Evangelism Fellowship, 386

F.3d at 524 (internal quotation marks and citation omitted).

8

We reject the District Attorney’s argument that irreparable

injury would not occur if felony charges were filed because

juvenile proceedings are closed, rehabilitative in nature, and

Doe would have the right to counsel, the right to put the state to

its burden of proof, and the benefit of state appellate court

review. Because, as discussed below, the Does have shown a

likelihood of success on the merits of their retaliation claim,

they have necessarily shown that irreparable harm would result

absent an injunction. See Elrod v. Burns, 427 U.S. 347, 373

(1976) (“The loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable

injury.”).

15

A. Plaintiffs’ Legal Theory of Relief

To state a claim under § 1983, plaintiffs must show that

the defendant, under the color of state law, deprived them of a

federal constitutional or statutory right. See Gruenke v. Seip,

225 F.3d 290, 298 (3d Cir. 2000). Plaintiffs base their claims on

retaliation for the exercise of constitutionally protected rights,

which “is itself a violation of rights secured by the Constitution

actionable under section 1983.” White v. Napoleon, 897 F.2d

103, 111–12 (3d Cir. 1990). To prevail on a retaliation claim,

a plaintiff must prove “(1) that he engaged in

constitutionally-protected activity; (2) that the government

responded with retaliation; and (3) that the protected activity

caused the retaliation.” Eichenlaub v. Twp. of Indiana, 385 F.3d

274, 282 (3d Cir. 2004). At the preliminary injunction stage,

plaintiffs need only show a reasonable probability that their

retaliation claims will succeed on the merits. McTernan, 577

F.3d at 526.

The initial plaintiffs brought three causes of action in

their complaint: (1) retaliation in violation of the minors’ First

Amendment right to free expression, the expression being their

appearing in two photographs; (2) retaliation in violation of the

minors’ First Amendment right to be free from compelled

speech, the speech being the education program’s required essay

explaining how their actions were wrong; and (3) retaliation in

violation of the parents’ Fourteenth Amendment substantive due

process right to direct their children’s upbringing, the

16

interference being certain items in the education program that

fall within the domain of the parents, not the District Attorney.

The District Court granted injunctive relief based only on

the second and third claims, and the parties did not brief the first

claim before us. While we requested supplemental briefing on

plaintiffs’ first cause of action, we decline to consider it in the

first instance. (Of course, plaintiffs may advance that cause of

action on remand as the case proceeds on the merits.)

Accordingly, we will consider only those causes of action

addressed by the District Court and raised by the parties—the

second and third claims.

Before going further, we focus on the act of retaliation

urged by plaintiffs. We discern two possibilities based on

plaintiffs’ complaint and argument: (1) the District Attorney

retaliated against plaintiffs when he threatened prosecution; and

(2) any future prosecution would be an unconstitutional act of

retaliation. As discussed below, only the second theory is

viable.

The first theory—the theory accepted by the District

Court—is that the District Attorney’s “threatened prosecution is

retaliation for the exercise of their First and Fourteenth

Amendment rights for refusing to participate in the education

program at issue here.” Miller, 605 F. Supp. 2d at 643. In other

words, plaintiffs asserted a constitutionally protected right to

refuse to participate in the education program, and the District

17

Attorney responded to that assertion with threats to prosecute

the minors for the sole purpose of coercing them to attend the

program.

This claim presents a timing problem, as the District

Attorney threatened to prosecute Doe before she refused to

attend the program. Such a threat of prosecution was not

retaliation “in response to” and “because of” the exercise of a

right not to attend the program, as Doe had not yet asserted that

right when the District Attorney made the threat to prosecute.

Because this theory has a sequence flaw, we cannot affirm the

District Court’s grant of injunctive relief on this basis.9 Cf.

9

Plaintiffs bring no direct constitutional claim, only claims

of retaliation. Had they pled a direct constitutional violation, we

would apply intermediate or strict scrutiny to determine whether

the threats of prosecution unconstitutionally burdened or

inhibited the exercise of their First and Fourteenth Amendment

rights not to attend the education program. For an example of

a direct constitutional claim based on the threat of prosecution,

see Porter v. Bowen, 496 F.3d 1009, 1021, 1025 (9th Cir. 2007)

(threat of prosecution that “severely burdened” expressive

conduct protected by the First Amendment did not survive

intermediate scrutiny); see also Stolt-Nielsen, S.A. v. United

States, 442 F.3d 177, 183 (3d Cir. 2006) (noting that courts may

enjoin criminal prosecutions “in limited situations where the

mere threat of prosecution would inhibit the exercise of

constitutional freedoms”); Aiello v. City of Wilmington, 623 F.2d

845, 857 (3d Cir. 1980) (“An impermissible chill is created

18

Wilkie v. Robbins, 551 U.S. 537, 558 n.10 (2007) (“In the

standard retaliation case recognized in our precedent, the

plaintiff has performed some discrete act in the past, typically

saying something that irritates the defendant official; the

question is whether the official’s later action against the

plaintiff was taken for a legitimate purpose (firing to rid the

work force of a substandard performer, for example) or for the

purpose of punishing for the exercise of a constitutional right

(that is, retaliation, probably motivated by spite). The plaintiff’s

action is over and done with, and the only question is the

defendant’s purpose, which may be maliciously motivated.”)

(emphases added); Morón-Barradas v. Dep’t of Educ., 488 F.3d

472, 481 (1st Cir. 2007) (“It is impossible for the DOE to have

retaliated against Morón before she engaged in protected

when one is deterred from engaging in protected activity by the

existence of a governmental regulation or the threat of

prosecution thereunder.”). Such a claim would not have a

timing problem.

A retaliation claim is different. It asks not whether the

exercise of a right has been unconstitutionally burdened or

inhibited (in other words, survives rational basis, intermediate

scrutiny, or strict scrutiny review), but whether the Government

is punishing the plaintiffs for exercising their rights. Under the

doctrine of retaliation, “an otherwise legitimate and

constitutional government act can become unconstitutional

when an individual demonstrates that it was undertaken in

retaliation for his exercise of First Amendment speech.”

Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997).

19

activity.”); Durkin v. City of Chicago, 341 F.3d 606, 614–15

(7th Cir. 2003) (“It is axiomatic that a plaintiff engage in

statutorily protected activity before an employer can retaliate

against her for engaging in statutorily protected activity. . . .

[W]e have never held that an employer can retaliate when there

has been no protected expression. An employer cannot retaliate

if there is nothing for it to retaliate against.”).

Plaintiffs’ second theory—that a future prosecution

would be the retaliatory act—does not suffer the same timing

defect, as any prosecution will necessarily come after Doe’s

refusal to attend the program.10 We discern this theory from

plaintiffs’ TRO motion before the District Court, which stated,

“Although the retaliation has not yet occurred, it is ‘of sufficient

immediacy and reality to warrant the issuance’ of an order

enjoining the threatened prosecution.” (Emphasis added.)

Other statements in the same motion espouse this second theory:

plaintiffs asserted they sought relief “to bar Skumanick from

bringing the retaliatory criminal charges” for their refusal to

attend the program, that “Skumanick has assured [them] that he

will retaliate by filing” criminal charges, and that “plaintiff

minors would be subject to an adverse action if they are

10

While the record does not reveal that Doe expressly told

the District Attorney she would not attend the program, the Does

did not attend the February 28 meeting to finalize the informal

adjustment paperwork, but instead filed this lawsuit. We think

this sufficient as a refusal to attend the program.

20

prosecuted for child pornography.” (Emphases added.)

The District Court also recognized plaintiffs’ second

variation on their retaliation claim, stating:

Plaintiffs insist that retaliation exists here because

(1) minor plaintiffs have a constitutional right to

avoid the courses and their parents have a

constitutional right to direct their education; (2)

prosecution of the girls would be retaliation (an

adverse action); and (3) because the girls’ pictures

were not illegal, the only reason to prosecute them

would be in retaliation for exercising their

constitutional right not to participate in the

program.

Miller, 605 F. Supp. 2d at 643 (emphases added).

In other words, plaintiffs seek injunctive relief to prevent

a future retaliatory act—an actual prosecution that has not yet

been brought—from occurring. As discussed below, we affirm

the District Court on this alternative ground.11 See Ayers v.

11

The District Attorney does not raise, and we do not

perceive, any problems regarding plaintiffs’ standing or

ripeness. Skumanick’s direct and clear threat to prosecute

establishes as real and immediate the danger Doe would be

prosecuted when she refused to attend the education program.

21

Philadelphia Hous. Auth., 908 F.2d 1184, 1196 (3d Cir. 1990)

(affirming “on a different ground” the district court’s denial of

a preliminary injunction motion).

B. Elements of Retaliation

1. Constitutionally Protected Activity

Turning to the first element of a retaliation claim, we

agree with the District Court that plaintiffs have shown a

reasonable likelihood of establishing that coercing Doe’s

participation in the education program violated (a) Jane Doe’s

Fourteenth Amendment right to parental autonomy and (b)

Nancy Doe’s First Amendment right against compelled speech.

a. Parent’s Fourteenth Amendment

Right

Parents have a Fourteenth Amendment substantive due

process right “to raise their children without undue state

interference.” Gruenke, 225 F.3d at 303.12 “Choices about

marriage, family life, and the upbringing of children are among

associational rights this Court has ranked as of basic importance

12

While retaliation cases often are based on First

Amendment rights, the doctrine applies when there is official

retaliation for the exercise of “any constitutional right.”

Anderson, 125 F.3d at 162 (emphasis in original).

22

in our society, rights sheltered by the Fourteenth Amendment

against the State’s unwarranted usurpation, disregard, or

disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (internal

quotation marks and citation omitted). Indeed, the “interest of

parents in the care, custody, and control of their children[] is

perhaps the oldest of the fundamental liberty interests,” Troxel

v. Granville, 530 U.S. 57, 65 (2000), and is well-established by

long-standing Supreme Court precedent. See Meyer v.

Nebraska, 262 U.S. 390, 399, 401 (1923) (recognizing that the

Constitution protects the right of parents to “bring up children”

and “to control the education of their own”); Pierce v. Soc’y of

the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510,

534–35 (1925) (acknowledging parents’ right “to direct the

upbringing and education of” their children); Prince v.

Massachusetts, 321 U.S. 158, 166 (1944) (observing the

“cardinal” principle that “the custody, care and nurture of the

child reside first in the parents”); Wisconsin v. Yoder, 406 U.S.

205, 233 (1972) (recognizing parents’ right to instill in their

children “moral standards, religious beliefs, and elements of

good citizenship”).

Here, Jane Doe objects to the education program’s

lessons in why the minors’ actions were wrong, what it means

to be a girl in today’s society, and non-traditional societal and

job roles. Appellees’ Br. at 18–19. She particularly opposes

these value lessons from a District Attorney who has “stated

publicly that a teen[]age girl who voluntarily posed for a photo

wearing a swimsuit violated Pennsylvania’s child pornography

23

statute.” Id. at 19. The program’s teachings that the minors’

actions were morally “wrong” and created a victim contradict

the beliefs she wishes to instill in her daughter.

We agree that an individual District Attorney may not

coerce parents into permitting him to impose on their children

his ideas of morality and gender roles. An essential component

of Jane Doe’s right to raise her daughter—the “responsibility to

inculcate moral standards, religious beliefs, and elements of

good citizenship,” Gruenke, 225 F.3d at 307—was interfered

with by the District Attorney’s actions. While it may have been

constitutionally permissible for the District Attorney to offer this

education voluntarily (that is, free of consequences for not

attending), he was not free to coerce attendance by threatening

prosecution.

Our case law and Pennsylvania’s statutory law recognize

that school officials have a “‘secondary responsibility’” in the

upbringing of children, and “in certain circumstances the

parental right to control the upbringing of a child must give way

to a school’s ability to control curriculum and the school

environment.” C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159,

182 (3d Cir. 2005) (quoting Gruenke, 225 F.3d at 307); 24 Pa.

Stat. Ann. § 13-1317 (“Every teacher, vice principal and

principal in the public schools shall have the right to exercise the

same authority as to conduct and behavior over the pupils

attending his school, during the time they are in attendance,

including the time required in going to and from their homes, as

24

the parents, guardians or persons in parental relation to such

pupils may exercise over them.”). We can say with assuredness,

however, that the District Attorney is not imbued with that same

“secondary responsibility.” Indeed, we find no support for this

proposition in any related statute, regulation, or case. The

District Attorney is not a public education official, but a public

law enforcement official. We do not express a view on the

propriety of this program had it been offered as part of the

school curriculum,13 though we note that Jane Doe has a

constitutionally protected right to choose the school her child

attends, see Runyon v. McCrary, 427 U.S. 160, 178 (1976), a

choice lacking in the current context.

We conclude that Jane Doe is likely to succeed in

showing that the education program required by the District

Attorney impermissibly usurped and violated her fundamental

right to raise her child without undue state interference.

b. Minor’s First Amendment Right

Government action that requires stating a particular

message favored by the government violates the First

13

Cf. Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 248

n.24 (3d Cir. 2008) (per curiam) (recognizing that federal courts

“have held that parents have no right to exempt their child from

certain subjects, reading assignments, community-service

requirements[,] or assembly programs they find objectionable”).

25

Amendment right to refrain from speaking. C.N., 430 F.3d at

187;14 see also Turner Broad. Sys., Inc. v. Fed. Commc’ns

Comm’n, 512 U.S. 622, 641 (1994) (recognizing that

“[g]overnment action that . . . requires the utterance of a

particular message favored by the Government . . . contravenes

th[e] essential right” to refrain from speaking protected by the

First Amendment); Riley v. Nat’l Fed’n of the Blind of N.C.,

Inc., 487 U.S. 781, 796–97 (1988) (“[T]he First Amendment

guarantees ‘freedom of speech,’ a term necessarily comprising

the decision of both what to say and what not to say.”)

(emphasis in original). A violation of the First Amendment

right against compelled speech occurs “only in the context of

actual compulsion,” although that compulsion need not be a

direct threat. C.N., 430 F.3d at 189.

According to plaintiffs, the compelled speech arises from

the program’s requirement that the minors write a homework

14

In C.N., while we recognized that the “Supreme Court has

only ever found a violation of the First Amendment right against

compelled speech in the context of forced speech that requires

the private speaker to embrace a particular government-favored

message,” we held that the First Amendment right against

compelled speech is not limited to the government’s requiring

a speaker to express a certain viewpoint or message; requiring

content-neutral speech may violate the First Amendment,

although it will be subject to a different level of scrutiny than

content-based requirements. 430 F.3d at 188.

26

paper explaining “how [their] actions were wrong.” Jane and

Nancy Doe do not agree that appearing in the photograph was

wrong, and they assert that requiring Nancy Doe to write an

essay to that effect “invades the sphere of intellect and spirit

which it is the purpose of the First Amendment to our

Constitution to reserve from all official control.” W.V. State Bd.

of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (holding that

mandatory participation in Pledge of Allegiance violated

children’s First Amendment free speech rights). The

compulsion here takes the form of the District Attorney’s

promise to prosecute Doe if she does not satisfactorily complete

the education program.

We agree with the District Court at this preliminary stage

that Nancy Doe likely can show that the education program

would violate her First Amendment freedom against compelled

speech. She would be required to explain why her actions were

wrong (presumably as a moral, not a legal, matter) in the

context of a program that purports to teach, as Mitchell’s

counsel described at oral argument, “[w]hat it means to be a girl;

sexual self-respect, [and] sexual identity.” Oral Arg. Tr. at 14.

We see a fundamental distinction between this requirement and

the oft-used and constitutionally sound requirement in pre-

indictment or pre-trial diversion programs that a potential

defendant acknowledge responsibility for his or her criminal

conduct or admit wrongdoing. “[W]hat it means to be a girl in

today’s society,” while an important sociological concern, in this

case is a disconnect with the criminal and juvenile justice

27

systems. This mismatch is all the more troubling given the age

of the program’s participants. Minors often are more

susceptible to external influences, and while this susceptibility

may weigh in favor of certain educational or rehabilitative

programs, it also cautions against allowing actors in the juvenile

and criminal justice systems to venture outside the realm of their

elected authority.

2. Government Responded with Retaliation

Under the second element of a retaliation claim, plaintiffs

must show the Government responded with a retaliatory act.

The test in our Circuit for determining whether an action is

treated as retaliation is whether it is “sufficient to deter a person

of ordinary firmness from exercising his constitutional rights.”

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (internal

quotation marks, citation, and alteration omitted). There is no

doubt a prosecution meets this test, and the District Attorney

does not argue otherwise. See Hartman v. Moore, 547 U.S. 250

(2006) (discussing retaliatory prosecution cases).

3. Causation

The third element of a retaliation claim connects the

previous two—there must be a causal link between the protected

activity (the first element) and the retaliatory act (the second

element). Plaintiffs allege that there is no probable cause to

prosecute Doe, and the District Attorney’s only motive for

28

bringing a prosecution is to retaliate against her for refusing to

attend the education program.15 We agree that plaintiffs have

shown a likelihood of success on the causation prong of their

retaliation claim, given the District Attorney’s explicit statement

that he will respond to (that is, retaliate for) Nancy Doe’s failure

to attend the education program, or not completing that program

if she starts, by prosecuting her. Among other examples, a letter

signed by Skumanick states that “charges will be filed against

those that do not participate or those that do not successfully

complete the program.” He reiterated this threat at the February

12 meeting, and asserted on appeal unequivocally that “[Doe]

could have refused to attend the class or write any essay and

merely defended herself against the Juvenile Petition . . . .”

Appellant’s Br. at 10.

By agreeing not to prosecute the minors if they attended

and completed the program, the District Attorney’s only motive

15

We note that the constitutionality of the sexual abuse of

children statute is not at issue (at least directly) in plaintiffs’

second and third causes of action; plaintiffs instead challenge

the constitutionality of the prosecutor’s act of bringing a

prosecution (no matter what the statute) to punish them for

asserting their constitutional rights. In this regard, we view

plaintiffs’ citation to Steffel, 415 U.S. at 462, 475, and Wooley

v. Maynard, 430 U.S. 705, 710–15 (1977), as unhelpful because

in those cases the plaintiffs alleged that the criminal statute

directly violated their constitutional rights.

29

for bringing a prosecution against Doe would be, as he stated,

a consequence of her not attending or completing it. In other

words, it is uncontroverted that the District Attorney would not

have brought criminal charges had Doe attended and completed

the program. Of course, every offer of a pre-indictment

diversionary program presents a choice potential defendants

must make, and a prosecution brought after the offer of

diversion is refused ordinarily is not considered retaliation. The

difference here is the decision not to attend the program is

constitutionally protected (at least at this stage plaintiffs have

shown a reasonable likelihood this is so) for the reasons stated

in Part IV.B.1.

That the District Attorney’s motive in bringing a

prosecution is likely retaliatory, rather than a good faith effort to

enforce the law, is supported by the lack of evidence of probable

cause. See Hartman, 547 U.S. at 265 (“[A] retaliatory motive

on the part of an official urging prosecution combined with an

absence of probable cause supporting the prosecutor’s decision

to go forward are reasonable grounds to suspend the

presumption of regularity behind the charging decision, see

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (emphasizing

that ‘so long as the prosecutor has probable cause,’ the charging

decision is generally discretionary), and enough for a prima

facie inference that the unconstitutionally motivated inducement

infected the prosecutor’s decision to bring the charge.”).

Assuming that the sexual abuse of children law applies to a

minor depicted in the allegedly pornographic photograph, and

30

that the photo in question could constitute a “prohibited sexual

act” 16 (issues on which we need not opine), we discern no

indication from this record that the District Attorney had any

evidence that Doe ever possessed or distributed the photo.

When asked at oral argument the basis for probable cause to

charge Doe with possession or distribution of child

pornography, Mitchell’s counsel answered that it was “[t]he

existence of that photograph . . . [,] the presence of that

photograph on the cell phones of one or more of her . . .

classmates.” Oral Arg. Tr. at 20. But appearing in a photograph

provides no evidence as to whether that person possessed or

transmitted the photo. Mitchell’s counsel could not make a

representation to us as to whether the District Attorney had, at

the time of the TRO hearing (which, we note, was months after

Skumanick threatened to prosecute), any evidence of her

transmission of the photo. Oral Arg. Tr. at 21. Despite ample

16

“Prohibited sexual act” is defined as “sexual intercourse

. . . , masturbation, sadism, masochism, bestiality, fellatio,

cunnilingus, lewd exhibition of the genitals or nudity if such

nudity is depicted for the purpose of sexual stimulation or

gratification of any person who might view such depiction.” 18

Pa. Cons. Stat. Ann. § 6312. This statute was amended during

the pendency of this appeal, see H.B. 89, 193rd Gen. Assem.,

Reg. Sess. (Pa. 2009), but the amendments are not material to

this case. The photograph of Doe could only fall under the last

category—“nudity . . . depicted for the purpose of sexual

stimulation or gratification of any person who might view such

depiction.”

31

opportunity, the District Attorney has failed to present any

semblance of probable cause.

The District Court may revisit this determination at a

later date, and the District Attorney is free to move to vacate the

injunction if he thinks he has secured probable cause. In

Hartman, the Supreme Court held that plaintiffs bringing

retaliatory prosecution claims must allege and prove lack of

probable cause as an element of causation. 547 U.S. at 252.

Therefore, if probable cause exists, the injunction must be lifted.

The suit in Hartman was brought against criminal

investigators for inducing prosecution in retaliation for protected

speech. A “distinct problem of causation” exists in retaliatory-

inducement-to-prosecute cases, as a “causal gap” exists between

the actor possessing the retaliatory animus (the government

agent) and the other actor (the prosecutor) instituting the

retaliation. Id. at 262–64. This “distinct problem of causation”

does not exist here, as the same actor (the District Attorney)

possesses the retaliatory motive and would institute the

prosecution. However, given Hartman’s broad holding that

probable cause must be pled and proven in retaliatory

prosecution cases, and the Supreme Court’s reliance on “the

longstanding presumption of regularity accorded to prosecutorial

decision making,” id. at 263, we eschew any attempt to

32

distinguish Hartman from our case.17 See Barnes v. Wright, 449

F.3d 709, 720 (6th Cir. 2006) (applying Hartman, even though

the concerns regarding the intervening actions of a prosecutor

did not apply—the officers themselves initiated the allegedly

retaliatory grand jury proceedings—because the Hartman Court

recognized that its rule swept broadly by stating that causation

in retaliatory prosecution cases is “usually more complex than

it is in other retaliation cases”) (quoting Hartman, 547 U.S. at

261) (emphasis supplied in Barnes). Under Hartman, then,

plaintiffs cannot succeed without proving an absence of

probable cause.

Given that the only items of evidence in the record of the

District Attorney’s motive, at least at this preliminary stage, are

(1) the existence of the photograph on another student’s phone,

and (2) the District Attorney’s threat to prosecute for

nonattendance at the education program, plaintiffs have

established a reasonable likelihood of success as to causation.

In sum, absent an injunction, the Does would have to

17

We note that Hartman did not anticipate actions for

retaliatory prosecutions against prosecutors, as prosecutors

ordinarily enjoy absolute immunity from damage liability. See

Hartman, 547 U.S. at 261–62 (“A Bivens (or § 1983) action for

retaliatory prosecution will not be brought against the

prosecutor, who is absolutely immune from liability for the

decision to prosecute . . . .”).

33

choose either to assert their constitutional rights and face a

prosecution of Nancy Doe based not on probable cause but as

punishment for exercising their constitutional rights, or forgo

those rights and avoid prosecution. On the facts before us, this

Hobson’s Choice is unconstitutional. While “the Government

retains broad discretion as to whom to prosecute,” “the decision

to prosecute may not be deliberately based on . . . arbitrary

classification, including the exercise of protected statutory and

constitutional rights.” Wayte v. United States, 470 U.S. 598,

607–08 (1985) (internal quotation marks and citations omitted);

see also United States v. Goodwin, 457 U.S. 368, 372 (1982)

(“For while an individual certainly may be penalized for

violating the law, he just as certainly may not be punished for

exercising a protected statutory or constitutional right.”).

We realize that considerations of comity, federalism, and

prosecutorial discretion are implicated by this injunction, and

that “judicial intrusion into executive discretion of such high

order should be minimal.” Hartman, 547 U.S. at 263. Indeed,

there is a “presumption of regularity behind the charging

decision,” id. at 265, and “so long as the prosecutor has probable

cause to believe that the accused committed an offense defined

by statute, the decision whether or not to prosecute, and what

charge to file or bring before a grand jury, generally rests

entirely in his discretion.” Bordenkircher, 434 U.S. at 364. Yet

we “have a limited authority to affect prosecutorial actions when

those actions are taken in violation of the Constitution,” United

States v. Santtini, 963 F.2d 585, 596 (3d Cir. 1992), and there

34

are rare instances where a federal court may assess the quantum

of evidence underlying a threatened state prosecution. See

Brady v. United States, 397 U.S. 742, 751 n.8 (1970)

(suggesting that a prosecutor’s broad authority may be

questioned where “the prosecutor threatened prosecution on a

charge not justified by the evidence”). This case presents one of

those rare instances.18

* * * * *

At this preliminary stage we conclude that plaintiffs have

shown a likelihood of success on their claims that any

prosecution would not be based on probable cause that Doe

committed a crime, but instead in retaliation for Doe’s exercise

of her constitutional rights not to attend the education program.

Therefore, we affirm the grant of a preliminary injunction and

remand for further proceedings.

18

This decision does not open the door to federal courts

serving as a screening mechanism for state prosecutions. Before

us is the unique circumstance of a prosecutor revealing

unequivocally that a prosecution would be brought solely in

response to a potential defendant’s exercise of a constitutional

right. As the Supreme Court noted in Hartman, these

“[u]nambiguous admissions” are “likely to be rare.” 547 U.S.

at 264 n.10.

35