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).