Opposition Brief — Veneklase v. City of Fargo

FILED

y)

s JUL 18 200

No. 00-1712

OFFICE OF THE CLERK

In The

Supreme Court of the United States

e

CHRISTOPHER VENEKLASE, PAUL B. MEHL,

DAROLD LARSON, NANCY EMMEL and

JESSICA UCHTMAN,

Petitioners,

CITY OF FARGO,

Respondent.

«

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

¢

RESPONDENT’S BRIEF IN OPPOSITION

*

Mike MILLER

Attorney of Record

Stacey E. TjJon

SOLBERG, STEWART, MILLER,

JOHNSON, TJON & KENNELLY, LTD.

1129 5th Avenue South

P.O. Box 1897

Fargo, North Dakota 58107-1897

(701) 237-3166

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

BE I, 6 £408 1EN iS a Sanden i

Ee I isis can cadndins fekskbldedsns iii

City of Fargo’s Brief in Opposition ................ 1

Counter-Statement of the Case.................005. 1

Reasons to Deny the Writ .....................000% 3

I. The Petition presents no important question of

federal law in conflict with relevant decisions of

Se Mean 55 in cae toe chet ee ele ee 3

A. Petitioners’ overbreadth claim is moot: the

Fargo Ordinance was repealed in 1998 and

only prospective relief is available on a

claim that an ordinance is unconstitu-

NN MINN Ss is kere enn sodveases Knxe 3

B. The Eighth Circuit correctly held that the

Fargo Ordinance is nearly identical to the

Ordinance held facially constitutional in

POEs Shine a cues iSundudea aed baccndscdks 8

1. The Fargo Ordinance is. easily suscept-

ible on its face to a narrow construction

to avoid constitutional difficulties ..... YG

2. Expansive responses by an enforcement

officer to hypothetical questions are not

determinative of how an ordinance

should be construed on its face ....... 11

3. The City of Fargo had a legitimate and

substantial interest in prohibiting tar-

geted picketing of a persons residence

and the ordinance did not ban prayer on

te SD 5. ios venice Scone ka ues 14

li

TABLE OF CONTENTS - Continued

Page

C. Petitioners’ as-applied claim is property

before this court because Petitioners did not

appeal the district court’s finding that

Fargo’s ordinance was not a policy or

failure to train that violated the constitution

oer eee eee eee eer ee eee eer eee eeere eee eseeeeseeeeeee

Even if the as-applied claim was not fore-

closed, the City is not liable as the City did

not fail to properly train its Officers and the

City did not have a policy or custom which

authorized the violation of State or Federal

CW i oc insascves Ged anbagpakeeeeee ae

II. Judge Bye properly refused to recuse him-

Il]. The Petition presents no conflict of deci-

i ETP Pee rer re er rer rr rrr once

COMCMION «oc 00 css seesaw enangan eens

APPENDIX

17

18

22

Appendix A — Fargo City Ordinance No. 2843 ..App. 1

ill

TABLE OF AUTHORITIES

Page

Cases

Alexander v. United States, 509 U.S. 544 (1993) ........ 5

Allen-Bradley Local No. 1111, United Electrical,

Radio and Machine Workers of America v. Wiscon-

sin Employment Relations Board, 315 U.S. 740

NGS SSGG0si 04 UGE 4554445 00sec c4cenedadndawd«s 12

Arizonans for Official English v. Arizona, 520 U.S. 43

DEE MALECEUNESU Waar OS05 oo 6506 00K%edendenpensdeee 4

Barilla v. Ervin, 886 F.2d 1514 (9th Cir. 1989) ......... +

Broadrick v. Oklahoma, 413 U.S. 601

EMSS SSNS GHEY C00 Shd 8060s ceanesecaas 5, 6, 9, 10, 13

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) ..... 6

Camfield v. City of Oklahoma City, 248 F.3d 1214

i MEE C660 C 506s 66 4hnas Ohne decns s¥0¥.cd xs 4

Carey v. Brown, 447 U.S. 455 (1980).................. 14

Carey v. Piphus, 435 U.S. 247 (1978) ............ 6, 7, 5

City of Canton v. Harris, 489 U.S. 378 (1989)...... 18, 19

City of Houston v. Hill, 482 U.S. 451 (1987) ........... +

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S.

8 PELL CPCPTrETerereeeere rer ereee +

City of Morales v. Chicago, 527 U.S. 41 (1999) ......... 5

Consolidated Edison Co. v. Public Serviced Comm'n of

New York, 447 U.S. 530 (1980)...............00e00. 15

Cox v. New Hampshire, 312 U.S. 569 (1941)........... 16

Crandon v. United States, 494 U.S. 152 (1990)...... 12, 13

iv

TABLE OF AUTHORITIES - Continued

Page

Crawford-El v. Britton, 523 U.S. 574 (1998) ........... 13

Douglas v. Brownell, 88 F.3d 1511 (8th Cir.

SPUD 62k 6nd5e 00 cen cds wunnakstaseeeetscaenes 7, 21, 26

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Construction Trades Council, 485 U.S.

PD EEUU soo bce decnckedsseantnsnsskecedssadpensne 9

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ..9, 10

Fargo Women’s Health Org., Inc. v. sonar, 18 F.3d

ee Ge GMs PIN 6 hn n5 hg cdnbssde secs ehcassnens 22

POG & Pociies, 450 US. 706 GGG vs sas ccisccvacivns 12

Frisby v. Schultz, 487 U.S. 474 (1988) ............ passim

Gerritsen v. City of Los Angeles, 994 F.2d 570 (9th

Gas SEE 5a cee vhaeoscanxsvensacbadaneaeansedaten 7

Gregory v. Chicago, 394 U.S. 112 (1969) .............. 15

Fill @. Colorado, S30 US. 703 (2000) ........0.0.cceees 3

Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637

GOO GR BONG Bas subcenssnsdedssenesbaskechencakcaen 4

Lindsey v. Normet, 405 U.S. 56 (1972)................ 12

Liteky v. United States, 510 U.S. 540 (1994)........... 24

Lucero v. Trosch, 121 F.3d 591 (11th Cir. 1997)..... 27, 28

Madsen v. Women’s Health Ctr., 512 U.S. 753 (1994) .... 26

Massachusetts v. Oakes, 491 U.S. 576 (1989)............ 4

Memphis Community Sch. Dist. v. Stachura, 477 U.S.

BPO Go bint ari ian csb0e 0 GbS hehe behbes he vines 6, 7

Vv

TABLE OF AUTHORITIES - Continued

Page

National Endowment for the Arts v. Finley, 524 U.S.

ee SPAS akin kA aaae ENE AN Sin cb SdKED oheG edd N eeu 5

New York v. Ferber, 458 U.S. 747 (1982)............... 5

Sabot v. Fargo Women’s Health Org., Inc., 500

PEsOEeMn WO CPOBP. BOOOD akc cnsescaccuscobassncs 22, 24

Schultz v. Frisby, 877 F.2d 6 (7th Cir.

OPT TT ELE Tre Tere rrrecerrrer 13, 21, 27, 28

Secretary of State of Maryland v. Munson, 467 U.S.

PU GE 6 an acaecccpesbeccancyeucensd Maeewen clas 5

Valero Terrestrial Corp. v. Paige, 211 F.3d 112 (4th

MD 0.00 shewebdchaseehadaans acetate ce. and enee. 4

Veneklase v. City of Fargo, 248 F.3d 738 (8th Cir.

PEs eee kestnenkvadss deawdeusnapladeniaceses passim

Veneklase v. City of Fargo, 236 F.3d 899 (8th Cir.

NN 03006 in ixaddenbgund baakewatedande eae 23, 24

Veneklase v. City of Fargo, 200 F.3d 1111 (8th Cir.

ROPE th esnee cates sna Chibevastaseiehelp eee 20

Veneklase v. City of Fargo, 78 F.3d 1264 (8th Cir.

ROMP 25 wh teckencentepvessanehadedaaghicn 2, 8, 13, 19

Vittitow v. City of Arlington, 43 F.3d 1100 (6th Cir.

re Wao nnabeseneeasadsadn as 25, 26, 27, 28

STATUTES

PP ls BO ak i anna soos 4550s esckee ee 24

Se BE ED 48 9s din ohavaedhennscbus eae 24

Se ees PG 8k 25 when's da 0p dc cha chan chaleane 23

GE Sie I Ri oh op esa ska de usdacd bods ee pF

vi

TABLE OF AUTHORITIES - Continued

Page

ORDINANCES

_ Fargo Municipal Code § 10-1201(A)................. 10

Fargo Municipal Code § 10-1201(B) ................. 10

Raany OF Pango Ordimamce 206)... ccccccccccsssvcsace 3

CITY OF FARGO’S BRIEF IN OPPOSITION

Respondent City of Fargo respectfully submits the

following Opposition to the Petition for a Writ of Cer-

tiorari filed by Christopher Veneklase, Paul B. Mehl,

Darold Larson, Nancy Emmel and Jessica Uchtman (here-

inafter “Petitioners,” “demonstrators,” or “protestors”).

+

COUNTER-STATEMENT OF THE CASE

On a Thursday night in October 1991, between 10:00

p-m. and 10:30 p.m., a group of ten to fifteen protestors

staged a demonstration outside the home of Fargo resi-

dent Jane Bovard. The protestors walked continuously

back and forth, in single file, on the sidewalk in front of

the Bovard home, including in their route the two to three

houses on either side of the targeted residence. At least

one demonstrator was in front of the Bovard home at all

times. When Ms. Bovard returned home that night and

observed the picketers, she was scared. She later testified

that she called the Fargo police because she was con-

cerned for her own safety as well as that of her neighbors.

When the police arrived, they observed the protestors

staging a targeted demonstration in front of the Bovard

home. The police knew that Ms. Bovard was employed as

the administrator of Fargo’s sole abortion clinic. After

observing the demonstrators for some time, the officers

informed them that their actions violated Fargo’s residen-

tial picketing ordinance. More than once, the officers

asked the protestors to leave. The police finally arrested

those persons who refused to leave.}

The demonstrators subsequently brought claims

against the City of Fargo and the arresting police officers

alleging, among other things, violations of 42 U.S.C.

§ 1983 based on allegations of false arrest and a failure to

train. In an interlocutory ruling, the court below held that

the individual police officers were each entitled_to quali-

fied immunity based on their reasonable actions in light

of the clearly established law at the time. Veneklase v. City

of Fargo, 78 F.3d 1264 (8th Cir. 1996) (Veneklase I). The

district court ultimately ruled that Fargo’s residential

ordinance was not “content neutral” and, accordingly,

that the City of Fargo had violated Plaintiffs’ constitu-

tional rights. App. J1-J11. A jury trial was held solely on

the issue of damages based on the non-content neutrality

of the ordinance, and the jury awarded plaintiffs a total of

$2,431 in damages. The judge subsequently awarded

attorneys’ fees and costs to Plaintiffs’ counsel in the

amount of approximately $52,000. App. I1-I2. The City of

Fargo appealed. An en banc court reversed the judgment

against the City of Fargo for damages and assessment of

attorney fees and costs based largely on an intervening

decision by this Court. See Veneklase v. City of Fargo, 248

F.3d 738 (8th Cir. 2001) (Veneklase II). The plaintiffs filed

their Petition for Writ of Certiorari [“the Petition”] on

May 14, 2001.

1 See Veneklase v. City of Fargo, 248 F.3d 738, 743 (8th Cir.

2001), citing Veneklase v. City of Fargo, 78 F.3d 1264, 1266 (8th Cir.

1996). Also see police reports. App. P1-P3.

REASONS TO DENY THE WRIT

Prior to the Petition, the primary focus of the parties

and the court below was whether Fargo’s picketing ordi-

nance was “content neutral”. This Court’s intervening

decision in Hill v. Colorado, 530 U.S. 703 (2000), however,

clarified that the Fargo ordinance is clearly content neu-

tral and, appropriately, Petitioners have now abandoned

that claim. See Petition at 9 n. 2.

That now abandoned claim was Petitioners’ only

remaining viable cause of action in this litigation. Peti-

tioners’ overbreadth claim is moot. Moreover, even if it

were not moot, Petitioners’ overbreadth claim is directly

and clearly governed by this Court’s decision in Frisby v.

Schultz, 487 U.S. 474 (1988), and, therefore, is also not

meritorious. The other claims advanced by Petitioners are

similarly not meritorious and were correctly decided by

the Eighth Circuit below. Accordingly, Petitioners’ writ

should be denied.

I. THE PETITION PRESENTS NO IMPORTANT

QUESTION OF FEDERAL LAW IN CONFLICT

WITH RELEVANT DECISIONS OF THIS COURT

A. Petitioners’ Overbreadth Claim is Moot: the

Fargo Ordinance was Repealed in 1998 and

Only Prospective Relief is Available on a Claim

that an Ordinance is Unconstitutionally Over-

broad.

The Fargo residential picketing ordinance at issue in

this case was repealed on January 26, 1998. See Fargo

Ordinance 2843 (reproduced in the Appendix hereto). The

City of Fargo has not reenacted the ordinance and has not

declared or demonstrated any intention of doing so.*

Accordingly, the primary question presented by the Peti-

tion, namely whether the Fargo ordinance is overbroad

on its face, is moot.3

The First Amendment overbreadth doctrine is limited

to claims for prospective relief. See, e.g., City of Houston v.

Hill, 482 U.S. 451, 459 n. 7 (1987) (stating that a person

may have standing to seek prospective relief to challenge

ordinance as overbroad even when the ordinance has

2 The City of Fargo did not repeal its ordinance in an

attempt to defeat jurisdiction. Cf. City of Mesquite v. Aladdin’s

Castle, Inc., 455 U.S. 283 (1982) (holding that city’s repeal of

ordinance after district court held ordinance unconstitutional

did not moot case because city had announced its intention to

reenact ordinance if case was dismissed on mootness grounds).

To the contrary, the City of Fargo abandoned the ordinance

more than four years ago and it has never attempted, or stated

that it intends, to reenact the residential picketing ordinance.

See, e.g., Massachusetts v. Oakes, 491 U.S. 576, 582 (1989) (holding

that amendment of law prohibiting pornography of minors

mooted overbreadth challenge) (“Because the special concern

that animates the overbreadth doctrine is no longer present

after the amendment or repeal of the challenged statute we need

not extend the benefits of the doctrine to a defendant whose

conduct is not protected.”); See also Camfield v. City of Oklahoma

City, 248 F.3d 1214, 1223 (10th Cir. 2001) (holding that Mesquite

applies to prevent case from being moot only where city intends

to reenact ordinance); Valero Terrestrial Corp. v. Paige, 211 F.3d

112, 116 (4th Cir. 2000) (same); Kentucky Right to Life, Inc. v.

Terry, 108 F.3d 637, 645 (6th Cir. 1997) (same); Barilla v. Ervin, 886

F.2d 1514, 1521 (9th Cir. 1989) (same).

3 This Court is obligated, of course, to determine whether a

live case or controversy exists before examining the merits of

Petitioners’ overbreadth claim. See, e.g., Arizonans for Official

English v. Arizona, 520 U.S. 43 (1997).

been repeatedly and constitutionally applied to that per-

son in the past); Secretary of State of Maryland v. Munson,

467 U.S. 947, 958 (1984) (“Facial challenges to overly

broad statutes are allowed not primarily for the benefit of

the litigant, but for the benefit of society — to prevent the

statute from chilling the First Amendment rights of other

parties not before the court. Munson’s ability to serve

that function has nothing to do with whether or not its

own First Amendment rights are at stake.”); New York v.

Ferber, 458 U.S. 747, 772-73 (1982) (“This requirement of

substantial overbreadth may justifiably be applied to stat-

utory challenges which arise in defense of a criminal

prosecution as well as civil enforcement or actions seek-

ing a declaratory judgment.”). It does not give rise to

damages because it is a doctrine limited to facial chal-

lenges, see, e.g., City of Morales v. Chicago, 527 U.S. 41, 52

(1999) (“the overbreadth doctrine permits the facial

invalidation of laws that inhibit the exercise of First

Amendment rights if the impermissible applications of

the law are substantial when ‘judged in relation to the

statute’s plainly legitimate sweep.’ ”) quoting Broadrick v.

Oklahoma, 413 U.S. 601, 612-615 (1973); National Endow-

ment for the Arts v. Finley, 524 U.S. 569, 619 (1998) (“we

have routinely understood the overbreadth doctrine to

apply where the plaintiff mounts a facial challenge to a

law investing the government with discretion to discrimi-

nate on viewpoint when it parcels out benefits in support

of speech.”); Alexander v. United States, 509 U.S. 544, 555

(1993) (“The ‘overbreadth’ doctrine . . . permits a [crimi-

nal] defendant to make a facial challenge to an overly

broad statute restricting speech, even if he himself has

engaged in speech that could be regulated under a more

narrowly drawn statute.”). The doctrine does not permit

the award of damages to compensate for injury resulting

from application of the challenged ordinance. See, e.g.,

Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299,

309 (1986) (emphasizing that damages must always be

designed to compensate for personal injury, even when

the constitutional right implicated is the First Amend-

ment); Carey v. Piphus, 435 U.S. 247, 254-55 (1978) (apply-

ing traditional principles of common law torts to Section

1983 claims, stating that damages may only compensate

for constitutional injuries personally and actually suf-

fered). Instead, the overbreadth doctrine permits “an

individual who’s own speech or expressive conduct may

validly be prohibited or sanctioned . . . to challenge a

statute on its face because it also threatens others not

before the court — those who desire to engage in legally

protected expression but who may refrain from doing so

rather than risk prosecution or undertake to have the law

declared partially invalid.” Brockett v. Spokane Arcades,

Inc., 472 U.S. 491, 503 (1985). The doctrine was designed

as a departure from traditional rules of standing to enable

persons who are themselves unharmed by the defect in a

statute nevertheless to challenge the statute on the

ground that it may conceivably be applied unconstitu-

tionally to others in other situations not before the Court.

See, e.g., Broadrick v. Oklahoma, 413 U.S. 601 (1973).

Accordingly, when persons invoke. the overbreadth

doctrine, as Petitioners’ attempt to do in this case, they

are not asserting a claim for damages based on the doc-

trine, since any claim for damages is necessarily a func-

tion of how the ordinance has been applied to them. See

Stachura, 477 U.S. at 309; Carey, 435 U.S. at 254-55.4 Peti-

tioners’ facial overbreadth challenge to the Fargo ordi-

nance is for prospective relief only. Because the ordinance

was repealed in 1998, the facial challenge is now moot.5

Accordingly, because the Petition does not present this

Court with a case or controversy as to the primary ques-

tion presented, the petition should be denied.

* In his dissent from the en banc decision below, Judge

Arnold cites two cases for the proposition that “[a] city is liable

for damages under Section 1983 if its officers deprive someone

of liberty pursuant to a facially unconstitutional municipal

ordinance.” See Veneklase, 248 F.3d at 753 (citing Douglas v.

Brownell, 88 F.3d 1511 (8th Cir. 1996) and Gerritsen v. City of Los

Angeles, 994 F.2d 570 (9th Cir. 1993)). Yet neither stands for the

principle that a plaintiff asserting a facial overbreadth challenge

to an ordinance (in other words, not an as-applied challenge

based on personal injury) is entitled to damages. In Douglas, the

protestors challenged both residential picketing and parade-

permit ordinances seeking damages, injunctive, and declaratory

relief under Section 1983. Douglas, 88 F.3d at 1514. The court in

Douglas determined that even though the doctor moved from

the town, the protestors still had standing because their

challenge was not solely based on their desire to picket the

doctors’ residence. In Gerritsen, the Court is clear that the

damages awarded were only as to the “as-applied” claims. See,

e.g., Gerritsen, 944 F.2d at 577. Contrary to the dissent’s

assertion, overbreadth claims do not give rise to damages.

> To the extent that Petitioners attempt to bootstrap their

overbreadth challenge into a claim for damages, they are

misguided. Petitioners are eligible for damages for their own

personal injuries, in other words, for any damages that result

from application of the ordinance to them. That claim presents a

distinctly as-applied challenge to the ordinance and, for the

reasons set forth below, is similarly defective.

B. The Eighth Circuit Correctly held that the Fargo

Ordinance is Nearly Identical to the Ordinance

Held Facially Constitutional in Frisby.

Even if the repealed Fargo ordinance did not present

a moot question on its face, Petitioners acknowledge that

it was “virtually identical” to the ordinance upheld as

constitutional on its face by this Court in Frisby. There-

fore, the court below correctly determined that the Fargo

ordinance, like the Frisby ordinance, was constitutional

on its face. See Veneklase v. City of Fargo, 78 F.3d at 1268

n. 4; 904 F.Supp. at 1053-54. The facial construction of the

ordinance does not present an important question of fed-

eral law, but a straightforward one correctly resolved by

the Eighth Circuit consistent with this Court’s relevant

decisions.

The prohibitory language of the Fargo ordinance

states:

10-1202. Picketing of dwellings prohibited. - No

person shall engage in picketing the dwelling of

any individual in the City of Fargo.

Veneklase II, 248 F.3d at 741. The Fargo ordinance also

defined the term “[d]welling” to mean “any structure or

building, or dwelling unit within a building, which is

used as a place of residence” and the term “[p]icketing”

to mean “the practice of standing, marching, or patrolling

by one or more persons inside of, in front, or about any

premises for the purpose of persuading an occupant of

such premises or to protest some action, attitude or

belief.” Veneklase II, 248 F.3d at 741.

Similarly, the ordinance upheld by this Court in

Frisby provides:

It is unlawful for any person to engage in pick-

eting before or about the residence or dwelling

of any individual in the Town of Brookfield.

Frisby v. Schultz, 487 U.S. 474, 477 (1988). The term “pick-

eting” was determined to mean “posting at a particular

place.” See Frisby, 487 U.S. at 482. Fargo’s ordinance, like

the Frisby ordinance is not overly broad on its face.

1. The Fargo Ordinance is Susceptible on its

Face to a Narrow Construction that Avoids

Constitutional Difficulties.

Like the Frisby ordinance, the Fargo ordinance is on

its face readily susceptible to a narrow construction that

avoids constitutional difficulties. Ordinances should be

construed to avoid constitutional difficulties. See, e.g.,

Frisby, 487 U.S. at 483 (citing Erznoznik v. City of Jackson-

ville, 422 U.S. 205, 216 (1975); Broadrick, 413 U.S. at 613;

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building &

Construction Trades Council, 485 U.S. 568, 575 (1988)). In

Frisby, this Court construed the ordinance before it nar-

rowly in an effort to uphold the ordinance as constitu-

tional. Frisby, 487 U.S. at 482. Specifically, this Court

recognized that “the use of the singular form of the

words ‘residence’ and ‘dwelling’ suggests that the ordi-

nance is intended to prohibit only picketing focused on,

and taking place in front of, a particular residence.” Id. at

482. Moreover, the definition of picketing was “in line

with viewing the ordinance as limited to activity focused

on a single residence.” Id. at 483. Accordingly, this Court

concluded that the ordinance should be construed nar-

rowly and, so construed, passed constitutional muster. Id.

10

The Eighth Circuit likewise correctly construed the

Fargo ordinance by applying the precise analysis this

Court applied in Frisby. The court held that the Fargo

ordinance, like the Frisby ordinance, was susceptible to a

narrow construction sufficient to uphold the ordinance as

constitutional on its face. Like the Frisby ordinance, the

Fargo ordinance used the singular form of the word

“dwelling.” See Veneklase II, 248 F.3d at 741 (citing Fargo

Municipal Code § 10-1201(A), 10-1201(B)). Like the Frisby

ordinance, the Fargo ordinance clearly defined its terms

to apply to a single residence. See Veneklase II, 248 F.3d at

741 (citing Fargo Municipal Code § 10-1201(A) (defining

dwelling in strictly singular terms, such as “any structure

or building”)). Finally, like the Frisby ordinance, the Fargo

ordinance defined picketing to apply to a single home.

See Veneklase II, 248 F.3d at 741 (citing Fargo Municipal

Code § 10-1201(A) (limiting picketing to activities involv-

ing “any premises”)).

Accordingly, like the ordinance in Frisby, the Fargo

ordinance is constitutional on its face. This Court has

stated that, “when considering a facial challenge it is

necessary to proceed with caution and restraint, as

invalidation may result in unnecessary interference... .

In accommodating these competing interests the Court

has held that a state statute should not be deemed facially

invalid unless it is not readily subject to a narrowing

construction by the state courts. ...” See Erznoznik, 422

U.S. at 216. Indeed, as this Court has also stated, applica-

tion of the overbreadth doctrine to invalidate a local

ordinance is “strong medicine . . . employed by the Court

sparingly and only as a last resort.” Broadrick, 413 U.S. at

613. Thus, the Eighth Circuit correctly followed Frisby by

11

holding that the Fargo ordinance, narrowly construed,

was constitutional on its face.

The Fargo ordinance was virtually identical to the

ordinance upheld as constitutional on its face in Frisby.

The Eighth Circuit’s decision correctly ruled that the

Fargo ordinance was similarly constitutional on its face.

2. Expansive Responses by an Enforcement

Officer to Hypothetical Questions Are Not

Determinative of How An Ordinance

Should Be Construed on its Face.

Petitioners and the dissent in Veneklase II attempt to

create a question of federal law from the deposition testi-

mony of the former Fargo police chief regarding the

scope of the now-repealed ordinance. Indeed, the dis-

sent’s conclusion that the Fargo ordinance was overbroad

rests almost entirely on that deposition colloquy. See

Veneklase II, 248 F.3d at 752. The law is clear, however,

that when the constitutionality of an ordinance is consid-

ered on its face, it is inappropriate for a court to consider

every hypothetical fact pattern that might possibly invite

application of the ordinance. Indeed, in Frisby, this Court

stated:

Of course, this case presents only a facial chal-

lenge to the ordinance. Particular hypothetical

applications of the ordinance . . . may present

somewhat different questions. Initially, the ordi-

nance by its own terms may not apply in such

circumstances, since the ordinance’s goal is the

protection of residential privacy, ..., and since

it speaks only of a “residence or dwelling,” not a

place of business. . . . Moreover, since our First

12

Amendment analysis is grounded in protection

of the unwilling residential listener, the consti-

tutionality of applying the ordinance to such hypo-

theticals remains open to question. These are,

however, questions we need not address today in

order to dispose of appellees’ facial challenge.

Frisby, 487 U.S. at 488 (internal citations omitted)

(emphasis added); see also, FCC v. Pacifica, 438 U.S. 726,

743 (1978) (“We will not now pass upon the constitu-

tionality of these regulations by envisioning the most

extreme applications conceivable, . . . but will deal with

those problems if and when they arise.”) (internal cita-

tions omitted); Lindsey v. Normet, 405 U.S. 56, 65 (1972)

(“[P]ossible infirmity in other situations does not render

[a statute] invalid on its face.”); Allen-Bradiey Local No.

1111, United Electrical, Radio and Mackine Workers of Amer-

ica v. Wisconsin Employment Relations Board, 315 U.S. 740,

746 (1942) (court will not “assume in advance that a State

will so construe its law as to” make it unenforceable).

-Moreover, it is well established that, when presented

with expansive interpretations of a local law otherwise

capable of construction without such interpretations on

its face, this Court has rejected those interpretations:

The law in question, a criminal statute, is not

administered by any agency but by the courts....

[W]e have never thought that the interpretation

of those charged with prosecuting criminal

statutes is entitled to deference.

Crandon v. United States, 494 U.S. 152, 177-78 (1990)

(Scalia, J. concurring) (emphasis added). Thus, in

Crandon, this Court declined to rely on an expansive

13

construction of a criminal statute. See generally, Crandon,

494 U.S. at 152.

Similarly, the facial construction of the Fargo ordi-

nance is not determined by deposition responses to hypo-

thetical questions about possible future applications of

the ordinance. Cf. Schultz v. Frisby, 877 F.2d 6, 8 (7th Cir.

1989) (“[t]he Constitution does not require [a city] to

answer hypothetical questions before it may enforce the

law. Incompleteness is a curse of language, as of human

imagination. To say that precision is a precondition to

enforcement is to say that no ordinance regulating speech

may stand - a proposition the Supreme Court has rejected

over and over again.”); Broadrick, 413 U.S. at 615 (“[T]here

comes a point where that effect — at best a prediction —

cannot, with confidence, justify invalidating a statute on

its face and so prohibiting a State from enforcing the

statute against conduct that is admittedly within its

power to proscribe. To put the matter another way, partic-

ularly where conduct and not merely speech is involved,

we believe that the overbreadth of a statute must not only

be real, but substantial as well, judged in relation to the

statute’s plainly legitimate sweep.”).

Moreover, it is undisputed that the individual police

officers in this case were entitled to qualified immunity

because their actions were objectively reasonable in light

of the constitutional law that was clearly established at

the time. Veneklase I, at 1269. It is well established that

police officers are not expected to be constitutional

scholars who anticipate legal developments See, e.g.,

Crawford-El v. Britton, 523 U.S. 574, 590 (1998). The police

chief’s deposition statements, therefore, regarding the

possible applications of the statute, could not be regarded

14

as controlling as to the issue of whether the statute is

facially constitutional - they were not even controlling on

the issue of individual liability, since the Eighth Circuit

held that the law was not clearly established on the

subject.

On its face, the Fargo ordinance was readily suscept-

ible to a narrowing and constitutional construction and

the Eighth Circuit properly did not regard the police

chief’s deposition testimony regarding the possible scope

of the ordinance to be determinative of the construction

of the ordinance.

3. The City of Fargo Had a Legitimate and

Substantial Interest in Prohibiting Targeted

Picketing of a Person’s Residence and the

Ordinance Did Not Ban Prayer on Public

Sidewalks.

This Court has consistently recognized that cities

have a legitimate and substantial interest in prohibiting

the targeted picketing of a-resident’s home. Indeed this

Court has stated that the “well-being, tranquility, and

privacy of the home,” are local interests “of the highest

order in a free and civilized society.” Frisby, 487 U.S. at

484 (quoting Carey v. Brown, 447 U.S. 455, 471 (1980)). This

Court has often “remarked on the unique nature of the

home, ‘the last citadel of the tired, the weary, and the

sick,’ and . . . recognized that ‘[p]reserving the sanctity of

the home, the one retreat to which men and women can

repair to escape from the tribulations of their daily pur-

suits, is surely an important value.’ ” Frisby, at 487 U.S. at

15

484-85 (quoting Gregory v. Chicago, 394 U.S. 111, 125

(1969) (Black, J., concurring), and Carey, 447 U.S. at 471)).

In Frisby, this Court recognized the power of the

government to protect the right of individuals in their

homes:

The First Amendment permits the government

to prohibit offensive speech as intrusive when

the ‘captive’ audience cannot avoid the objec-

tionable speech. See Consolidated Edison Co. v.

Public Service Comm'n of New York, 447 U.S. 530,

542 (1980). Cf. Bolger v. Youngs Drug Products

Corp. supra, at 72. The target of the focused

picketing banned by the Brookfield ordinance is

just such a ‘captive.’ The resident is figuratively,

and perhaps literally, trapped within the home,

and because of the unique and subtle impact of

such picketing is left with no ready means of

avoiding the unwanted speech. Cf. Cohen v. Cali-

fornia, 403 U.S., at 21-22 (noting ease of avoiding

unwanted speech in other circumstances). Thus,

the ‘evil’ of targeted residential picketing, the

very presence of an unwelcome visitor at the

home, Carey, supra, at 478 (Rehnquist, J., dis-

senting), is ‘created by the medium of expres-

sion itself.’ See Taxpayers for Vincent, supra, at

810. Accordingly, the Brookfield ordinance’s

complete ban of that particular medium of

expression is narrowly tailored.

Id. at 487. Thus, this Court has held that, “even if some

such picketers have a broader communicative purpose,

their activity nonetheless inherently and offensively

intrudes on residential privacy. The devastating effect of

targeted picketing on the quiet enjoyment of the home is

beyond doubt.” Frisby, 487 U.S. at 486.

16

The group of ten to fifteen protestors who walked

back and forth in front of Ms. Bovard’s home on a late

weeknight were not simply a “non-focused silent prayer

line passing by five to eight houses,” as asserted in Peti-

tion at 12.6 They were engaged in a directed protest of the

home of the City’s sole abortion clinic administrator. At

all times during their late-night demonstration, at least

one member of the Petitioners’ group was in front of the

targeted home, as the group continuously marched back

and forth in a route that clearly placed Ms. Bovard’s

home at its epicenter. The Fargo resident targeted by

Petitioners’ late-night demonstration was certainly an

unwilling listener captive in her home. She called on the

Fargo police to protect her, and the City of Fargo clearly |

had a legitimate and substantial interest in doing so.

€ Fargo’s ordinance did not ban prayer on public sidewalks

but did prohibit focused residential picketing. Assuming the

protestors in this case were engaged in prayer, that prayer was

part of the overall conduct focused on the targeted residence

and properly prohibited. See, Cox v. New Hampshire, 312 U.S.

569, 578 (1941) (stating that parade permit ordinance did not

interfere “with religious worship or the practice of religion in

any proper sense . . . [and] only [constituted] the exercise of

local control over the use of streets. .. . ”). Moreover, this Court

has recognized that “picketing” can include a wide variety of {

activities, including prayer. See Frisby, 487 U.S. at 486 (also

defining the conduct falling within the picketing ordinance as

conduct not for the purpose of disseminating a message to the

general public, but for the purpose of intruding on the targeted

resident).

saan

Te aay ENT Tre

17

C. Petitioners’ As-Applied Claim is Not Properly

Before this Court Because Petitioners Did Not

Appeal the District Court’s Finding That

Fargo’s Ordinance Was Not a Policy or Failure

to Train that Violated the Constitution.

The court below correctly held that there was no

viable as-applied challenge to the Fargo ordinance

because the district court’s rulings had specifically and

correctly addressed and rejected Petitioners’ claim that

the City of Fargo had a policy authorizing illegal arrests

or the City had failed to train its police officers. See

Veneklase II, 248 F.3d at 748. Petitioners, however, did not

appeal those findings by the district court to the court of

appeals, and they do not argue even to this Court that

either of the two lower courts erred. See Veneklase II, 248

F.3d at 747-48. Instead, Petitioners argue that their as-

applied claim is meritorious on the ground that the City

of Fargo did not have a legitimate and substantial interest

in prohibiting their actions. As discussed, supra, how-

ever, the City of Fargo clearly did have a legitimate and

substantial interest in prohibiting the targeted residential

demonstrating that gave rise to Petitioners’ arrest.

Accordingly, Petitioners’ as-applied claim is foreclosed

and their arguments regarding the as-applied constitu-

tionality of the Fargo ordinance provide no basis to grant

their Petition.”

7 Even Judge Arnold, in his dissent below, does not contend .

that the protestors in this case have a surviving as-applied

challenge. See Veneklase, 248 F.3d at 749-753 (dissent).

18

D. Even If The As-Applied Claim was Not Fore-

closed, The City Is Not Liable because the City

Did Not Fail to Properly Train Its Police Offi-

cers and the City Did Not Have a Policy or

Custom Which Authorized the Violation of

State or Federal Law.

Even assuming arguendo that Petitioners preserved an

as-applied challenge, the Eighth Circuit correctly held

that, even if Petitioners could prove that the ordinance

had been unconstitutionally applied to them, it would be

necessary to demonstrate that the City had (a) a policy or

custom authorizing conduct contravening federal and

state constitutions and law, or (b) deficient police train-

ing, and Petitioners failed to show either. See Veneklase II

at 748.

Petitioners contend that the City should be liable for

the arrests for any protesting that occurred beyond Ms.

Bovard’s single residence. They claim that because they

demonstrated in front of the two or three houses on

either side of the targeted residence, their actions were

outside the scope of the Fargo ordinance. Accordingly,

they maintain that they were arrested because the police

were not properly trained and unconstitutionally applied

the ordinance to them.

A failure to train results in liability, however, only in

limited and narrow circumstances, when such failure

amounts to deliberate indifference to the constitutional

rights of others. City of Canton, Ohio v. Harris, 489 U.S.

378, 389 (1989). Indeed, a failure to train can be the basis

for liability only where it “reflects a ‘deliberate’ or ‘con-

scious’ choice by a municipality.” Id. at 389. The training

Pee

19

deficiency “must be closely related to the ultimate

injury.” Id. at 391.

In Veneklase I, the Eighth Circuit held that the law

regarding the permissible scope of application of the

Fargo ordinance was not clearly established at the time of

Petitioners’ arrests. Veneklase I, 78 F.3d at 1269. In the

opinion below, the Eighth Circuit correctly held that,

regarding deficient police training, no liability can flow

from the alleged failure to train the Fargo police officers:

Pekan pam

} In light of the Eighth Circuit’s ruling [Veneklase

F I] that the law regarding the parameters of the

First Amendment right to protest against abor-

tion in a residential area was not clearly estab-

lished at the time of plaintiffs’ arrest, the City’s

failure to its train [sic] police officers could not

serve as the moving force behind the violation

of plaintiffs’ First Amendment rights. Since the

parameters of plaintiffs’ First Amendment rights

were still in question, any training of the City’s

police officers would necessarily leave those

parameters in doubt. Consequently, the lack of

training by the City cannot be the moving force

behind the violation of plaintiffs’ constitutional

rights.

Veneklase II, 248 F.3d at 748, citing Dist. Ct. Mem. and

Order, April 10, 1997.

Re a ea ee

Petitioners’ attempt to manufacture a significant

question of law out of the Eighth Circuit’s straightfor-

ward analysis plainly fails. This Court has held that, in

order to constitute deliberate indifference sufficient to

sustain a failure to train claim against a municipality, “the

need for more or different training” must be “obvious.”

See City of Canton, 489 U.S. at 390. The court of appeals

——————

20

correctly held that it was not possible for the City of

Fargo to have been “deliberately indifferent” to rights

that were not clearly established, let alone obvious, at the

time of the Petitioners’ arrests. See Veneklase II, 248 F.3d at

748.

Similarly, the Eighth Circuit correctly held that the

Fargo residential picketing ordinance did not constitute a

policy or custom authorizing the violation of federal or

state law. Fargo’s residential picketing ordinance was

virtually identical to the ordinance in Frisby and, indeed,

for the short time the ordinance was in effect prior to

being repealed, there were no arrests made or violations

prosecuted until Petitioners’ arrests in the fall of 1991.

This Court’s decision in Frisby upheld a city’s ability to

prohibit residential protesting narrowly focused on a sin-

gle residence. See Frisby, 487 U.S. 482-86. Petitioners’

actions in this case clearly fall within that category of

unprotected conduct and, thus, their as-applied claim

fails for this reason as well.

Petitioners argue (albeit in the context of advancing

their facial overbreadth claim) that Frisby was limited to

picketing activities that occurred solely in front of a sin-

gle targeted residence and that by extending their dem-

onstration to the two or three houses on either side of

their target’s home, they were beyond the reach of both

Frisby and the Fargo residential picketing ordinance.

Once again, Petitioners are incorrect. See Veneklase v. City

of Fargo, 200 F.3d 1111, 1118 (8th Cir. 1999) (vacated); see

also Veneklase II, 248 F.3d at 743 (“[w]Je essentially adopt

the panel opinion in [the vacated Veneklase opinion], 200

POG Tiki... «2 "}

i 21

The emphasis of this Court’s ruling in Frisby was that

focused picketing of an individual’s residence was con-

duct that a city could properly proscribe by a residential

picketing ordinance. This Court repeatedly stressed that

it was the targeted and focused nature of the picketers’

activities towards a single residence that rendered their

demonstration able to be proscribed. Id. at 483-85.

Although the demonstrators in Frisby contained their

actions to an area in front of one house, the targeting in

this case was no less focused upon a single residence,

notwithstanding that Petitioners extended their route to

the two or three houses on either side of Ms. Bovard’s

home. At all times, at least one protestor was passing in

front of Ms. Bovard’s home, as the group marched in

front of the targeted home and two or three houses on

both sides of the home. See Veneklase II, 248 F.3d at 743.

As the United States Court of Appeals for the Sev-

enth Circuit stated:

Surely [protestors] can’t evade the law by stand-

ing in front of the [targeted] home and occa-

sionally jumping one house on either side.

Schultz v. Frisby, 877 F.2d 6, 8 (7th Cir. 1989); see also

Douglas, 88 F.3d at 1520 (upholding residential picketing

ordinance that proscribed targeted picketing of residence

when protestors extended course to three houses on each

side of target as narrowly tailored). Petitioners in this

case attempted to do precisely that. The Eighth Circuit

correctly denied their attempt to evade the narrow reach

of Fargo’s former residential picketing ordinance.

Accordingly, because the Eighth Circuit correctly held

that the Fargo ordinance was appropriately applied in

this case, the Petition should be denied.

22

II. JUDGE BYE PROPERLY REFUSED TO RECUSE

HIMSELF

Petitioners argue that Circuit Judge Kermit Bye

should have recused himself in this case because his

former law firm represented Ms. Bovard and the abortion

clinic in litigation not related to this case. As Judge Bye

stated, Petitioners’ Motion to Disqualify him:

[Ils premised on the fact that the law firm of

which I was a member prior to becoming a

judge, Vogel, Weir, Hunke & McCormick, Ltd.,

of Fargo, North Dakota (the “Vogel law firm”),

had represented Fargo Women’s Health Organi-

zation in two cases at approximately the same

time the appellees were arrested. One case was a

medical malpractice action, in which both

Bovard and the clinic were named defendants.

See Sabot v. Fargo Women’s Health Org., Inc., 500

N.W.2d 889 (N.D. 1993). The other, with the

clinic as the plaintiff, was a civil rights suit

against the state seeking declaratory and injunc-

tive relief from the North Dakota Abortion Con-

trol Act. See Fargo Women’s Health Org. v. Schafer,

18 F.3d 526 (8th Cir. 1994).

None of the Veneklase plaintiffs were parties to

either of those lawsuits. Further, neither Bovard

nor the clinic is or has been a party in this

litigation, although Bovard was called to testify

as a witness as to the plaintiffs’ damages. The

Vogel law firm has never been involved in any

manner in this litigation, nor has it ever repre-

sented any of the Veneklase plaintiffs or the

appellant in any other matter. Neither Bovard

nor the clinic were at any time in the past ever

personal clients of mine. I was never involved as

a lawyer or otherwise in any of the matters in

23

which my former law firm several years ago

represented them.

Veneklase v. City of Fargo, 236 F.3d 899, 900 (8th Cir. 2000);

App. E3.

Judge Bye declined to recuse himself, explaining that

his law firm’s representation of Bovard and the Fargo

Women’s Health Organization was “isolated, unrelated

litigation going back six and seven years prior to my

taking the bench.” Id. Judge Bye went on to state:

Jane Bovard is not a party in this case. Nor is

she even an interested third party with a stake

in the outcome. The ordinance at issue in this

case has been amended; if plaintiffs or others

picket outside Bovard’s home in the future, they

may still be arrested, but under a different anti-

residential picketing ordinance. The court’s

decision as to the constitutionality of this ordi-

nance therefore has no practical effect on

Bovard.

Even if Bovard had an interest in this matter, my

former law firm never represented her in con-

nection with this case. Section 455(b) lists speci-

fic situations in which a judge must recuse

himself or herself from participation in a case;

one of these situations is “[wJhere in private

practice he served as a lawyer in the matter in

controversy, or a lawyer with whom he previ-

ously practiced law served during such associa-

tion as a lawyer concerning the matter...” 28

U.S.C. § 445(b)(2). My situation is several steps

removed from that described in § 445(b)(2); it is

so far removed from a case in which actual bias

may be found as to make even the appearance of

bias improbable.

24

Canon 3c(1) of the Code of Conduct for United

States Judges tracks almost identically the word-

ing contained in 28 U.S.C. § 455. The Canon

does not require recusal. It has been in excess of

six years since my former law firm represented

the clinic in Schafer and seven years since the

firm defended Bovard and the clinic in Sabot. I

never had any professional or personal relation-

ship of any kind or nature with either, and most

certainly no involvement as a lawyer in any of

those cases which took place in the early part of

the 1990’s.

Id. at 900-901.

Justice Kennedy, in a concurring opinion in Liteky v. )

United States, 510 U.S. 540 (1994), explained the high |

threshold that must be met before a judge should be |

recused or disqualified from hearing a case:

qualify himself in any proceeding in which his

impartiality might reasonably be- questioned.’

For present purposes, it should suffice to say

that § 455(a) is triggered by an attitude or state

of mind so resistant to fair and dispassionate

inquiry as to cause a party, the public, or a

reviewing court to have reasonable grounds to

question the neutral and objective character of a

judge’s rulings or findings. I think all would

agree that a high threshold is required to satisfy

this standard. Thus, under § 455(a), a judge

should be disqualified only if it appears that he

or she harbors an aversion, hostility or disposi-

tion of a kind that a fair-minded person could

not set aside when judging the dispute.

|

Section 455(a) provides that a judge ‘shall dis- |

q

Id. at 557, 558 (Kennedy, .J., concurring).

25

There is no evidence or indication that Judge Bye’s

attitude or state of mind is so resistant to fair and dispas-

sionate inquiry as to cause a party, the public or a review-

ing Court to have reasonable grounds to question his

neutral and objective findings.

Ill. THE PETITION PRESENTS NO CONFLICT OF

DECISIONS

Petitioners contend that the Eighth Circuit's decision

that the Fargo ordinance was constitutional on its face is

in conflict with decisions from other United States courts

of appeals and, by implication, that this Court should

exercise jurisdiction in order to resolve that conflict.

There is no circuit split, however, and accordingly the

Petition should be denied.

Petitioners attempt to characterize the Sixth Circuit's

decision in Vittitow v. City of Arlington, 43 F.3d 1100 (6th

Cir. 1995) as presenting a direct conflict with the Eighth

Circuit decision below. Petitioners ignore, however, that

the court in Vittitow did not decide a facial challenge to a

city’s residential picketing ordinance. Vittitow involved

an appeal from the terms of a district court’s preliminary

injunction on an as-applied challenge to a residential

picketing ordinance and, therefore, it does not conflict

with the Veneklase II holding that the Fargo ordinance was

constitutional on its face. See Vittitow, 43 F.3d at 1100.

Indeed, in Vittitow, the Sixth Circuit acknowledged

that, if the ordinance had been examined on its face and

determined to be “facially valid,” the city’s enforcement

of the ordinance would have to be determined on a case-

by-case basis. See Vittitow, 43 F.3d at 1106. In Vittitow,

26

however, the court regarded the challenge to be an as-

applied one, stating that a different course was required

because the challenge was as-applied by virtue of the

actual enforcement of the ordinance. Id. The Sixth Circuit

did not regard the district court’s preliminary injunction

either to be sufficiently clear, see 43 F.3d at 1105 n. 6, or

sufficiently tailored under this Court’s decision in Madsen

v. Women’s Health Ctr., 512 U.S. 753 (1994), for the injunc-

tion to stand. See Vittitow, 43 F.3d at 1105-06.

Indeed, a significant difference between Vittitow and

this case is that in this case the Eighth Circuit addressed

the constitutionality of an ordinance while Vittitow

involved the scope of an injunction, a distinction this

Court has recognized in requiring that an injunction must

be more precise than an ordinance. See Madsen, 512 US.

at 764-65. An injunction must “burden no more speech

than necessary,” id., while an ordinance — drafted through

legislative compromise - must only be “narrowly tai-

lored.” Frisby, 487 U.S. at 482.

In short, Vittitow is not in direct conflict with the

decision below because the Eighth Circuit clearly con-

strued an ordinance on its face —- not an injunction as

applied. See Vittitow, 43 F.3d at 1105.® Similarly, the two

8 In Douglas v. Brownell, the Eighth Circuit had held that an

ordinance that prohibited picketing the area immediately in

front of a doctor’s home and one house on each side of his home

was constitutional. 88 F.3d 1511, -1520 (8th Cir. 1996). Unlike the

injunction in Vittitow, which was a complete ban on residential

picketing, the Douglas ordinance (and similarly the Fargo

ordinance), allowed picketing through the neighborhood.

Douglas, 88 F.3d at 1520. Protestors were not prohibited from

“passing by” the targeted residence (as they would have been

27

other cases cited by Petitioners as creating “conflicts in

principle” are red herrings not in conflict with the Eighth

Circuit’s decision — either in principle or in reality. The

Eleventh Circuit’s decision in Lucero v. Trosch, 121 F.3d

591 (11th Cir. 1997), was an appeal of a Freedom of

Access to Clinic Entrance injunction; it did not involve

the construction of an ordinance. In Lucero, the court

invalidated an injunction that provided a 200-foot buffer

zone around all clinic employees’ residences because the

injunction was not sufficiently tailored. Id. at 606. Nev-

ertheless, the court recognized that this Court’s decision

in Madsen “makes clear that its precedents support

restriction of targeted picketing rather than a generalized

restriction.” Lucero, 121 F.3d at 606. Thus, Lucero in no

way conflicts — and in fact it is consistent with - the

decision below.

Similarly, the Seventh Circuit’s opinion on remand in

Schultz v. Frisby, 877 F.2d 6 (7th Cir. 1989), does not

conflict with the Veneklase decision, as the holding was

limited to declining a request to certify a question to the

Wisconsin Supreme Court regarding construction of the

ordinance. See Schultz, 877 F.2d at 7 (“So far as this case is

concerned the meaning of the ordinance is what the

Supreme Court said it means, and having this meaning is

constitutional.”) (emphasis in original). Thus, the issue of

construing the ordinance was not before the Seventh

Circuit because precisely that issue had already been

decided by this Court in Frisby. Nevertheless, in dicta the

Seventh Circuit remarked that, “The Constitution does

under the Vittitow injunction) unless they were engaged in

“focused” picketing.

28

not require [the city] to answer [all questions regarding

the scope of the ordinance as applied] before it may

enforce the law. .. . To say that precision is a precondition

to enforcement is to say that no ordinance regulating

speech may stand - a proposition the Supreme Court has

rejected over and again.” See Schultz, 877 F.2d at 8. More-

over, the court acknowledged that this Court’s decision in

Frisby allowed for application of a residential picketing

ordinance beyond a single home. Id. at 8 (“The trial

scheduled for August 1989, and subsequent appellate

proceedings in the Wisconsin courts, may elucidate the

meaning of the ordinance as applied to picketing that

fakes in several houses but might still be thought to dwell

on one.”). The Schultz decision not only does not conflict

with the Veneklase decision below, like Lucero, it supports

it.

Thus, a careful examination of the cases cited by

Petitioners belies their efforts to manufacture a split in

the circuits. Accordingly, because there is no split in

authority between the Eighth Circuit’s decision below in

Veneklase~II and the decisions in Vittitow, Lucero, or

Schultz, this Court should deny the Petition.

+

29

CONCLUSION

WHEREFORE, the City of Fargo respectfully requests

that this Court deny the Petition for Writ of Certiorari.

Respectfully submitted,

Mixe Miter (Attorney of Record)

Stacey E. Tjon

SOLBERG, STEWART, MILLER, JOHNSON,

Tjon & KENNELLY, LTD.

1129 Fifth Avenue South

P.O. Box 1897

Fargo, ND 58108-1897

Phone: (701) 237-3166

Attorneys for City of Fargo

July 18, 2001

APPENDIX

Fargo Municipal Code Ordinance No. 2843.......... Al

Al

OFFICE OF THE CITY ATTORNEY

FARGO, NORTH DAKOTA

ORDINANCE NO. 2843

AN ORDINANCE REPEALING ARTICLE 10-08 OF

CHAPTER 10 OF THE FARGO MUNICIPAL CODE

RELATING TO PICKETING

Be It Ordained by the Board of City Commissioners of the

City of Fargo:

Section 1. Repeal.

Article 10-08 of the Fargo Municipal Code is

hereby repealed in its entirety.

Section 2. Effective Date.

This ordinance shall be full force and effect from

and after its passage and approval.

/s/ Bruce W. Furness

Bruce W. Furness, Mayor

(SEAL)

Attest:

/s/ Carol J. Kraft

Carol J. Kraft, City Auditor

First Reading: 01/12/98

Second Reading: 01/26/98

Final Passage: 01/26/98