Petition for Writ of Certiorari — Skrzypczak v. Kauger

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Supreme Gourt, U.S.

\) FILED

96 958 DEC 131996

No. @6FiGe OF THE CLERK

In The

* Supreme Court of the United States

October Term, 1996

MONICA SKRZYPCZAK,

an Oklahoma citizen,

Petitioner,

vs.

YVONNE KAUGER, ROBERT E. LAVENDER,

ROBERT D. SIMMS, HARDY SUMMERS,

JOSEPH M. WATT, RALPH B. HODGES,

RUDOLPH HARGRAVE, ALMA WILSON,

and MARIAN P. OPALA, in their official capacities

as Justices of the Oklahoma Supreme Court,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

: ¢

Counsel of Record

MICHAEL Minnis, OBA #6251

Davip McCu.LtouGH, OBA #10898

MicHaet Minnis & Associates, P.C.

3160 Liberty Tower

100 North Broadway Ave

Oklahoma City, OK 73102-8805

(405) 235-7686 FAX (405) 232-5460

Attorneys for Petitioner

Monica Skrzypczak

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Is the liberal standing rule established by the

United States Supreme Court in Virginia v. American Book-

sellers Association, Inc., 484 U.S. 383 (1988), being applied

to litigants within the Tenth Circuit?

2. Is Petitioner’s standing allegation of having suf-

fered an injury in fact sufficient to defeat a 12(b)(6)

motion?

3. Does the existence of other avenues of First

Amendment expression defeat Petitioner’s 42 U.S.C.

§ 1983 claim if the challenged action is based on the

content of the speech?

4. Does a federal district court sitting in the Tenth

Circuit have subject matter jurisdiction to grant prospec-

tive injunctive relicf (not damages) against state court

judicial officers under Pulliam v. Allen, 466 U.S. 522

(1984)?

PARTIES TO THE PROCEEDINGS

Petitioner (Plaintiff below) is Monica Skrzypczak, an

Oklahoma citizen.

Respondents (Defendants below) are Yvonne Kauger,

Robert E. Lavender, Robert D. Simms, Hardy Summers,

Joseph M. Watt, Ralph B. Hodges, Rudolph Hargrave,

Alma Wilson, and Marian P. Opala, who have been sued

in their official capacities as justices of the Oklahoma

Supreme Court.

iii

TABLE OF CONTENTS

Page

RUMIMUPRALIEUED © URE BOE? oot snc beccccsvesmevevcos i

PARTIES TO THE PROCEEDINGS ........0.cecseee ii

pp ae ie 5 3 yt. a rr Vv

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JURISDICTIONAL STATEMENT..........3.....2.+- 1

CONSTITUTIONAL AND STATUTORY PROVI-

ES ee ee er ee 1

PESUEMIEUEOE GOK’ SOR GAME soos cc cresccsccedeseens 1

REASONS FOR ALLOWING THE WRIT........... 4

Suman: OF THE REASONS...........s0eceees 4

EE Sal xceh way seca terees vase bi wnuvess cen 7

RE SUE in a vase cabot pace cnnsvevnusts 7

ee I ee vee Wawceneadece cers’ 8

Walsuasicerstanding Meyer... . 0.6... cccssccccsccees 8

Pe SE NIN cca cee n eer recdevecnevscaves 11

What About American Booksellers?................ 11

Pulliam and Subject Matter Jurisdiction .......... 14

ogee C ik 6h Gn see Wo vei eid Vaden ¥ee ee 14

I NE irs Wisk aoe de dune dcbeaneecedevedes’s 14

ee ai awe seu neank ene ae 44 Kee 0% App. 1

Opinion by Tenth Circuit affirming district court

| RE PPE Ter? PP ew Tee Tree ery ere App. 1

TABLE OF CONTENTS -—- Continued

Page

Order by District Court, Western District of Okla-

homa, dismissing complaint ................. App. 8

Judgment by District Court, Western District

CUO 6 6 as ARAN ey Cae Ak ae App. 16

Order by Tenth Circuit denying petition for

Co er eee Pierre pave reer a. App. 17

Civil Rights Comment 2. csi i cee cece scesaun App. 19

TABLE OF AUTHORITIES

Page

CAsEs:

Clark v. Community for Creative Non-Violence, 468

U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)..... 6

Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 83

Sektthaik. RAE SRO wens ep doe nie ee re eee Nes Owes 4

Hackford v. Babbitt, 14 F.3d 1457 (10th Cir. 1994)..... 12

In re Initiative Petition No. 360, State Question No.

GO, GFP File BG CIR. FO nk cae e i ciensasaces 2

Leavitt v. Jane, 518 U.S. __, 116 S.Ct. 2068, 135

L.Ed.2d 443, 64 USLW 3831, 64 USLW 3834

CO OMD 5 a5 Fibs v0p Gu Ue kek eadi caste eee

Lewis o. Casey, .. US. , 116 S.Ct. 2174, 135

Rees WN CAPs aso ned cc ene nkawed obese cedauaet

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct.

El ASO Tate DOR TAO iniv nad acd pe abendavn 12,

Lujan v. National Wildlife Fed’n, 497 U.S. 871, 110

SOL. 3177, 114 L.BG.4d GIS (1990) ok. ccc wees

Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100

Seeicdin GaP CUOMO aac deeskavacksenenvsaven S, 8, 9,

New York Transit Authority v. Beazer, 440 U.S. 568,

oF 5.04. E05, SS Le2e BO CBSO oc cc cicdanves.

Perma Life Mufflers v. International Parts Corp., 392

U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968).....

Perry Education Ass'n v. Perry Local Educators’

Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794

CRPOED 005 cs nce bce sneidanka Pin toe SUN eCee asa asaeT | 5,

Police Department v. Mosley, 408 U.S. 92, 92 S.Ct.

2EOO, DI Lae dtd BAD CERF APs oe bates wens wg ecenns es

TABLE OF AUTHORITIES —- Continued

Page

Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80

Lae Os KINDA eek i dhe dks searadoegecuens 6, 8, 14

Skrzypczak v. Kauger, 92 F.3d 1050 (10th Cir. 1996)..... 1

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S.

464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).......... 11

Virginia v. American Booksellers Ass’n, Inc., 484 U.S.

383, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). .5, 6, 12, 13

Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct.

2746, TOS ©.BG-26 Gl (AFCO) ic vcccasesectveten 6, 11

Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45

Rntetbals DRS CRTs cnc ccccn ised sivevereipeaatureen 12

Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d

Se CURE) on. cv cbcnns secon peaenys ese eeeeeeeenehes 4

Unitep STATES CONSTITUTION:

ERS, Cer. Me Bess ce as Fe ok kee haan eae 1

CS. COM S. meee, BON, Be ii os bihavn en enns ennns 1

FEDERAL STATUTES & RULEs:

8 USL: 6 USE oe er eee eee 1

& USC, & 3068. edness ees. & 2, &, 6 7, 14

OTHER:

Hearings Before the Subcommittee on the Constitution

of the Committee on the Judiciary of the United

States Senate, in re S.J. Res. 67, December 13-14,

1977, U.S. Government Printing Office ............ 10

Vii

TABLE OF AUTHORITIES - Continued

Rehnquist, Oral Advocacy: A Disappearing Art, 35

paencer 1. Mev. 1015, 1027 CAPER) co. ee ec can cnccs. 4

Stem, Gressman & Shappiro, Supreme Court Prac-

Fane ee Me Goa tele te oe ee 15

OPINION BELOW

The opinion of the United States Court of Appeals for

the Tenth Circuit was published at 92 F.3d 1050 (10th Cir.

1996).

JURISDICTIONAL STATEMENT

The final judgment of the United States Court of

Appeals for the Tenth Circuit was entered on August 12,

1996, and Petitioner’s timely Petition for Rehearing was

denied on September 20, 1996. This petition is being filed

within ninety days thereafter. The Court's jurisdiction is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. U.S. CONST. amend. I

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

2. U.S. CONST. amend. XIV, § 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

3. 42 U.S.C. § 1983

Civil Action for Deprivation of Rights.

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Terri-

tory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the District of

Columbia.

STATEMENT OF THE CASE

Acting under color of state law in their official capac-

ities as state judicial officers, the Respondents violated

Petitioner’s First Amendment rights.

In In re Initiative Petition No. 349, State Question No.

642, Okla. Sup. Ct., Case No. 76,4371, certain initiative

1 838 P.2d 1 (Okla. 1992).

petition proponents sought certification for a vote on a

proposed ballot measure that would have restricted abor-

tion in Oklahoma. During the initiative petition certifica-

tion process, Respondents (by a 5-4 vote) prospectively

declared the proposed measure unconstitutional based

solely upon its content and struck it from the ballot. That

act violated the civil rights of Petitioner herein who was

not a party to the prior state court action nor in privity

with the initiative petition proponents.

Seeking injunctive relief only, Petitioner filed a civil

rights action in the Federal District Court for the Western

District of Oklahoma which dismissed her federal ques-

tion action for lack of subject matter jurisdiction. Peti-

tioner appealed to the United States Court of Appeals for

the Tenth Circuit. A three judge panel of the Tenth Circuit

affirmed, albeit on a different sua sponte basis, i.e. that the

Petitioner lacked standing, without even mentioning the

Supreme Court case cited in the Complaint as partial

basis for her allegation of standing. Skrzypczak’s Petition

for Rehearing and Suggestion for an En Banc Review was

denied on September 20, 1996.

The Tenth Circuit’s opinion misapprehends the Com-

plaint filed below and may explain the result. Petitioner

is not contending that she has a right to have any particu-

lar proposition on the ballot nor does she seek any relief

that would give her such a right. Skrzypczak is only

seeking First Amendment protection of a public forum

denied her (and other ballot measure debaters) solely

because the Respondents do not like the content of the

issue presented for the debate and a vote. The relief

Petitioner is seeking is not an order directing the Okla-

homa Supreme Court ‘o place Initiative Petition 349, State

Question 642, on the ballot, but rather a judgment: (1)

requiring Respondents to resume the processing of said

initiative petition without regard to its content (which

may or may not result in this particular measure being

placed on the ballot), and (2) preventing pre-submission

review in the future of other initiative petitions based on :

their content.

REASONS FOR ALLOWING THE WRIT

SUMMARY OF THE REASONS

Under egregious circumstances, the United States

Supreme Court can and should act as an error-correcting

court. Occasionally, the Court grants certiorari for no

reason other than error in the lower court decision. Chief

Justice Rehnquist has stated that “the most common rea-

son members of our Court vote to grant certiorari is that

they doubt the correctness of the decision in the lower

court.”? If the error in the lower court’s decision concerns :

an important constitutional problem, the grant of cer-

tiorari becomes more likely. For instance, in Florida v. |

Rodriguez, 469 U.S. 1 (1984), this Court reviewed the

correctness of the trial court’s “misapprehension of the

controlling principles of [Fourth Amendment] law.” 469

U.S. at 5. See also: Williams v. Lee, 358 U.S. 217 (1959);

Perma Life Mufflers v. International Parts Corp., 392 U.S. 134

(1968); and New York Transit Authority v. Beazer, 440 U.S.

568 (1979).

2 Rehnquist, Oral Advocacy: A Disappearing Art, 35 Mercer L.

Rev. 1015, 1027 (1984).

ntcneatmmmiiamatidaaaamaiiaaiiaaia iii

Certiorari is necessary to maintain uniformity with

this Court’s prior decisions, because the Tenth Circuit's

Opinion is contrary to:

(A) [on the standing issue] the controlling 42

U.S.C. § 1983 civil rights free speech case

of Virginia v. American Booksellers Assn.,

Inc., 484 U.S. 383, 392-93 (1988), which

established an exception to the general

standing rule applicable in free speech

civil rights cases like American Booksellers

and the case at bar;

(B) [on the quantum of speech issue] the con-

trolling 42 U.S.C. § 1983 civil rights free

speech case of Meyer v. Grant, 486 U.S. 414,

423-424 (1988), which (contrary to the

Tenth Circuit’s pronouncement) held that

the existence of other avenues of expres-

sion for initiative petition speakers? to dis-

seminate their ideas does not remove their

initiative petition speech from the bounds

of First Amendment protection. Initiative

petition speakers are constitutionally pro-

tected in selecting what they believe to be

the most effective means for delivering a

message, i.e. the initiative petition forum.

Meyer, 486 U.S. at 423-24. Furthermore,

content-based restrictions are unconstitu-

tional unless they are narrowly tailored to

serve a compelling governmental interest.

Perry Education Ass’n v. Perry Local Educa-

tors’ Ass'n, 460 U.S. 37, 45 (1983). Only

3 The phrase “initiative petition speakers” refers to all

those who employ First Amendment speech during the

initiative petition process from the filing of the petition through

the vote.

content-neutral regulations withstand

scrutiny if they “ ‘leave open ample alter-

native channels for communication.’ ”

Ward v. Rock Against Racism, 491 U.S. 781,

791 (1989), quoting Clark v. Community for

Creative Non-Violence, 468 U.S. 288 (1984);

the controlling 42 U.S.C. § 1983 civil rights

case of Pulliam v. Allen, 466 U.S. 522 (1984),

which held that, while state judicial offi-

cers enjoy a substantial degree of immu-

nity with regard to their official acts,

injunctive relief is available to prevent

state judicial officers from unconstitu-

tionally depriving persons of their civil

rights. In Pulliam, this Court authorized

the exercise of prospective injunctive relief

by a federal district court against state

judicial officers whose actions have

deprived persons of their constitutional

rights. This is precisely the nature of the

relief sought by Petitioner in her Com-

plaint.

A decision from this Court clarifying the civil rights

protection to be afforded the First Amendment advocacy

attendant to the initiative petition process would protect

freedom of expression in all twenty-four initiative peti-

tion jurisdictions. This case should be heard because of

the exceptional public importance of core political speech

in the “direct democracy” (i.e. initiative petition) forum,

and because of the Tenth Circuit’s failure to even discuss

the controlling standing case of American Booksellers.

ARGUMENTS

The Moving Target

Respondents’ counsel moved to dismiss this case at

the trial level based on the affirmative defense of res

judicata. The Western District of Oklahoma dismissed this

42 U.S.C. § 1983 case on the grounds of subject matter

jurisdiction. [App. 16] Skrzypczak prosecuted her appeal

therefrom to the Tenth Circuit Court of Appeals on the

grounds that a federal district court has jurisdiction to

hear a complaint alleging a federal civil rights action

seeking prospective equitable relief (not damages)

against state judicial officers who, acting under color of

state law, deprived the Petitioner of her federally guaran-

teed Constitutional rights. The Tenth Circuit affirmed the

dismissal albeit on yet another basis: standing.4

4 In Leavitt v. Jane L., 518 U.S. __, 116 S.Ct. 2068, 2072, 135

L.Ed 2d 443, 450 (1996), this Court stated:

The fact observed by the dissent, that the ‘underlying

substantive issue in this case’ is a controversial one,

generating ‘a kind of ‘hydraulic pressure’ that

motivates ad hoc decision-making,’ post, at __-___

[116 S.Ct. at 2073, 135 L.Ed 2d at 451] provides a

greater, not a lesser, justification for reversing state

law determinations that seem plainly wrong.

The issue in Leavitt was abortion; whereas, the issue in this case

is core political speech. Nevertheless, Petitioner has been forced

to respond after the fact to three different “ad hoc” dismissal

theories.

The Three Questions

Certiorari should be granted if the following three

questions can be answered in the affirmative:

1. Did Petitioner allege a case involving core

political speech protected by Meyer?

2. If yes, does Petitioner have standing to pros-

ecute the core political speech case?

3. If yes, does a federal district court have

subject matter jurisdiction to grant prospec-

tive injunctive relief (not damages) under

Pulliam?

Misunderstanding Meyer

The first question to be addressed is whether Peti-

tioner alleged a case involving core political speech pro-

tected by Meyer. The Tenth Circuit stated at page 6 of the

opinion:

[Skrzypczak] is free to argue against legalized

abortion. ... Her right to free speech in no way |

depends on the presence of SQ 642 on the ballot.

The Tenth Circuit continued at page 7 of the opinion:

The Meyer case is inapposite because the law at

issue in that case curtailed free speech — propo-

nents of an initiative petition were forbidden to

pay anyone to disseminate their message and

gather signatures for their petition. In this case,

the Oklahoma Supreme Court has done nothing

to restrict speech... .

The Tenth Circuit misapprehends Meyer. The claim in

Meyer was that a prohibition on the payment of initiative

petition circulators would reduce the domain of circula-

tors to a few volunteers; consequently, the quantum of

speech on the issue betweer circulators and potential

signers would be reduced.° This Court stated in Meyer:

The Colorado Supreme Court has itself recog-

nized that the prohibition against the use of

paid circulators has the inevitable effect of

reducing the total quantum of speech on a

public issue.

Meyer, 486 U.S. at 423 (emphasis added). This Court contin-

ued:

Appellants argue that even if the statute

imposes some limitation on First Amendment

expression, the burden is permissible because

other avenues of expression remain open... .

* * *

That appellees remain free to employ other

means to disseminate their ideas does not take

their speech through petition circulators outside

the bounds of First Amendment protection. . . .

That it leaves open “more burdensome” avenues

of communication, does not relieve its burden

on First Amendment expression. [Citations omit-

ted.]} The First Amendment protects appellees’

right not only to advocate their cause but also

to select what they believe to be the most

effective means for so doing.

Meyer, 486 U.S. at 424 (emphasis added).

> In Meyer, the Tenth Circuit Court of Appeals discussed at

some length how the quantity of speech on an issue would be

reduced by compelling circulation of initiative petitions

through volunteers rather than paid circulators. Grant v. Meyer,

828 F.2d 1446, 1452-54 (10th Cir. 1987).

The Tenth Circuit said that Petitioner is free to argue

against legalized abortion and that her free speech rights

are in no way dependent upon the presence of State

Question 642 on the ballot. It is also true that the propo-

nents in Meyer were free to speak on their issue outside of

the initiative petition forum and their right of free speech

was in no way dependent upon the presence of their

issue on the ballot. Nonetheless, the Tenth Circuit and

then this Court upheld the Colorado plaintiffs’ quantum

of speech claim.® While nothing prohibits Petitioner from

addressing listeners one-by-one on the sidewalk, to so

constrain her speech would reduce the quantum of

speech on the issue, and would fly in the face of the

“quantum of speech” rule of law established by Meyer.

Meyer is applicable and is not (as the Tenth Circuit

attempted to characterize it) inapposite to Petitioner’s

claims. Furthermore, the availability of other avenues of

expression is a viable argument only in the context of

content neutral restrictions. Content-based restrictions

are unconstitutional unless they are narrowly tailored to

serve a compelling government interest. Perry, 460 U.S. at

the Constitution of the Committee on the Judiciary of the United

States Senate, in re S.J. Res. 67, December 13-14, 1977, U.S.

Government Printing Office, at page 14:

Initiative gives people the power to get a fair hearing

about an issue which concerns them. If there are

enough citizens willing to sign petitions, to put a

question to a public vote, then that issue, at the very

least, will be fully debated and addressed in a public |

forum.

45. Content-neutral regulations on the other hand, with-

stand scrutiny if they “leave open ample alternative chan-

nels for communication.” Ward, 491 U.S. at 791. In this

case, the Respondents’ unconstitutional practice of pre-

submission review is content intensive.

Picking and Choosing

Petitioner is also claiming that Respondents are pick-

ing and choosing among initiatives based upon their

content, thus violating the First Amendment. Pre-submis-

sion content review by the Respondents is anything but a

content neutral, time/place/manner restriction. The

Respondents decide, based on the content of the state

question, whether there will be a debate and a vote upon

the measure.

In some cases, the Respondents have recognized the

unconstitutionality of a proposed measure, yet allowed

the debate and vote to occur, as they did in the federal

term limits case, In re Initiative Petition No. 360, State

Question No. 662, 879 P.2d 810 (Okla. 1994). Consequently,

there are also equal protection considerations involved

with pre-submission content review. Police Department v.

Mosley, 408 U.S. 92 (1972).

What About American Booksellers?

The second question is whether Petitioner has stand-

ing to prosecute the core political speech case at bar.

When deciding the standing issue, the Tenth Circuit dis-

cussed Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S. 464 (1982);

Lujan v. Defenders of Wildlife, 504 U.S. __, 112 S.Ct. 2130,

119 L.Ed 2d 351 (1992); Lujan v. National Wildlife Fed’n, 497

U.S. 871 (1990); Hackford v. Babbitt, 14 F.3d 1457 (10th Cir.

1994); and Warth v. Seldin, 422 U.S. 490 (1975). None of

these cases discuss the liberalized standing rule estab-

lished in American Booksellers by this Court for First

Amendment civil rights actions. The dispositive standing

rule was articulated by this Court in American Booksellers

at 484 U.S. 392-93:

We first address plaintiffs’ standing to bring

suit. The State argued before the District Court

that plaintiffs lacked standing to bring a pre-

enforcement facial challenge, alleging that plain-

tiffs did not suffer sufficient harm, and what

harm they did suffer was economic, not speech

related.

* * a

To bring a cause of action in federal court

requires that plaintiffs establish at an irreducible

minimum an injury in fact; that is, there must be

some “threatened or actual injury resulting from

the putatively illegal action... .” [Citations

omitted].

+ * *

Even if an injury in fact is demonstrated, the

usual rule is that a party may assert only a

violation of its own rights. However, in the First

Amendment context, “litigants . . . are permitted

to challenge a statute not because their own

rights of free expression are violated, but

because of a judicial prediction or assumption

that the statute’s very existence may cause |

others not before the court to refrain from con-

stitutionally protected speech or expression.”

[Citations omitted.] This exception applies here,

as plaintiffs have alleged an infringement of the

First Amendment rights of bookbuyers.

The Tenth Circuit’s opinion not only did not regard the

explicit language of American Booksellers as determinative

- it did not even use it as the point of departure for

addressing the standing question.”

Nevertheless, Petitioner has alleged “injury in fact”

to herself (as well as other initiative petition debaters).®

In Paragraphs 2.1(e)(1) [App. 21], 3.19-25 [App. 26-27],

and 3.26-3.30 [App. 27], Petitioner identified the injury

she suffered as a result of the Respondents “acting under

color of state law.” In Paragraph 2.1(e)(2) [App. 21], she

also alleged standing to prosecute the free speech claims

of others not before the court. The Tenth Circuit erred in

departing from this Court’s teaching in American Book-

sellers.

7” Petitioner alleged in Paragraph 2.1 (e) on page 3 of her

Complaint [App. 21-22] that she has standing to prosecute this

First Amendment civil rights case and specifically cited

American Booksellers on the face of the Complaint.

8 The allegations within Skrzypczak’s Complaint should

provide the benchmark for ruling on Respondents’ Motion to

Dismiss. Because “on a motion to dismiss we presume that

general allegations embrace those specific facts that are

necessary to support the claim.” Lewis v. Casey, ___ U.S. __, 116

S.Ct. 2174, 2183, 135 L.Ed.2d 606 (1996) quoting from Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136-2137,

119 L.Ed.2d 351 (1992).

Pulliam and Subject Matter Jurisdiction

The last question is whether a federal district court

has subject matter jurisdiction under 42 U.S.C. § 1983 to

grant prospective injunctive relief (not damages) under

Pulliam. Petitioner has not alleged that the Respondents

incorrectly adjudicated her civil rights in the State Ques-

tion 642 case to which she was not a party, rather Peti-

tioner alleges that the Respondents violated her rights

(and the rights of others) by virtue of Respondents’ pre-

submission content review. In Pulliam, this Court held

that, while state judicial officers enjoy a substantial

degree of immunity with regard to their official acts,

injunctive relief is available to prevent state judicial offi-

cers from unconstitutionally depriving the People of their

civil rights. Consequently, this Court authorized the exer-

cise of prospective injunctive relief by a federal district

court against state judicial officers whose actions

deprived persons of their constitutional rights. That relief

should likewise be available to Petitioner.

CONCLUSION

Chilling Effect

The dicta contained within the Opinion of the Tenth

Circuit (which has been published) may be seized upon

by the Respondents to justify pre-submission content

review in future cases. This will present any future initia-

tive petition proponent with a dilemma. If a proponent

files a 1983 civil rights action in the Western District of

Oklahoma seeking to enjoin the Respondents’ pre-sub-

mission content review of an initiative petition, the West-

ern District of Oklahoma may dismiss the case based on

the dicta in the Tenth Circuit’s published Opinion. On the

other hand, if a proponent files an initiative petition,

circulates it at great expense, and obtains the requisite

number of signatures, the Respondents may strike the

matter from the ballot based on the dicta in the Tenth

Cirtuit’s published Opinion, in which case, the propo-

nent’s only remedy would be to seek certiorari review

from this Court. Since only 3-4% of certiorari petitions are

granted,’ it is highly probable that the Respondents’

striking of a measure from the ballot will never be exam-

ined by this Court. As a consequence, the quantum of

debate that would have been generated from the date of

the submission of the signatures through the vote of the

People upon the initiative petition will be forever

reduced because the measure will never appear on the

ballot.

Petitioner and other speakers for and against State

Question 642 did not enjoy the quantum of speech that

would have occurred on this issue had the Respondents

not sua sponte struck the measure from the ballot. Radio

debates would have been aired, letters to the editor

would have been written, and the quantum of speech

produced by the initiative petition process would have

exponentially increased. The action by the Respondents

had the immediate effect of decimating the quantum of

speech on the issue and thus deprived Petitioner of her

* Stem, Gressman & Shappiro, Supreme Court Practice 6th

Ed., § 4.1 at page 192

First Amendment constitutional rights, as well as the

freedom of expression of other debaters. Unless certiorari

is granted, Respondents will not only have silenced State

Question 642 speakers, but will hereafter sit as censors of

the core political speech surrounding state questions ini-

tiated by Oklahoma voters.

Respectfully submitted,

MIcHAEL Minnis, OBA #6251

Davip McCuLLouGH, OBA #10898

MIcHAEL Minnis & Associates, P.C.

3160 Liberty Tower

100 North Broadway Ave

Oklahoma City, OK 73102-8805

(405) 235-7686 FAX (405) 232-5460

Attorneys for Monica Skrzypczak,

Petitioner

App. 1

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MONICA SKRZYPCZAK,

an Oklahoma citizen,

Plaintiff-Appellant,

YVONNE KAUGER, ROBERT E.

LAVENDER, ROBERT D. SIMMS,

HARDY SUMMERS, JOSEPH M.

WATT, RALPH B. HODGES,

RUDOLPH HARGRAVE, ALMA

WILSON, and MARIAN P. OPALA,

in their official capacities as Justices

of the Oklahoma Supreme Court,

No. 95-6156

Defendants-Appellees.

APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D. Ct. No. CIV-94-1236L)

(Filed Aug. 12, 1996)

Michael Minnis (David Mccullough with him on the

briefs), Michael Minnis & Associates, Oklahoma City,

Oklahoma, appearing for the Appellant.

Scott D. Boughton, Assistant Attorney General (W.A.

Drew Edmondson, Attorney General of Oklahoma, with

App. 2

him on the brief), Oklahoma City, Oklahoma, appearing

for the Appellees.

Before SEYMOUR, Chief Judge, PORFILIO and TACHA,

Circuit Judges.

TACHA, Circuit Judge.

In 1993, the Oklahoma Supreme Court held that a

proposed initiative restricting abortion, State Question

642 (“SQ 642”), could not be placed on the ballot because

it was unconstitutional. In re Initiative Petition No. 349, 838

P.2d 1, 7-8 (Okla. 1992), cert. denied, 113 S. Ct. 1028 (1993).

Monica Skrzypczak, who was not a party to that action,

filed this suit against the justices of the Oklahoma

Supreme Court alleging that the court’s refusal to place

SQ 642 on the ballot constituted a prior restraint on

speech. The district court granted the Oklahoma Supreme

Court’s motion to dismiss for lack of subject matter juris-

diction on the ground that a federal district court does

not have the authority to review final decisions of state

supreme courts. Our jurisdiction arises under 28 U.S.C.

§ 1291. We affirm the decision of the district court, but on

a different ground. We hold that Skrzypczak lacks stand-

ing to bring this suit because she failed to allege injury in

fact.

BACKGROUND

The Oklahoma Coalition to Restrict Abortion, Inc.,

and Fred W. Sellers, Jr. (“the proponents”) filed initiative

App. 3

petition pamphlets with the Oklahoma Secretary of State

on June 29, 1990. The proposed initiative, SQ 642, crimi-

nalized abortion, allowing it only in four circumstances:

(1) where continuing the pregnancy would cause grave

impairment of the woman’s physical or mental health; (2)

in cases of rape, as defined by Okla. Stat. tit. 21 § 1111

(West 1988); (3) in cases of incest, as defined in Okla. Stat.

tit. 21 § 885 (West 1988); and (4) in cases of grave physical

or mental defect of the fetus. Two individuals, Nancy

Feldman and Kim Little, filed a protest challenging the

constitutionality of SQ 642. They later withdrew their

claim.

On July 14, 1992, the Oklahoma Supreme Court sua

sponte ordered the proponents, as well as Feldman and

Little, to brief the impact of Planned Parenthood v. Casey,

112 S. Ct. 2791 (1992), on the constitutionality of SQ 642.

The proponents conceded in their brief that SQ 642 was

unconstitutional, but argued that the Oklahoma Supreme

Court should allow the initiative to go forward as an

exercise in political advocacy. The Oklahoma Supreme

Court held that SQ 642 was unconstitutional and thus

could not be placed on the ballot. In Re Initiative Petition

No. 349, 838 P.2d at 7-8. The Oklahoma Supreme Court

further held that pre-submission review of the constitu-

tionality of initiative petitions is appropriate, and rejected

the proponents’ argument that pre-submission review

violates their free speech rights. Id. at 8-10. The propo-

nents petitioned for certiorari, arguing that pre-submis-

sion review of the initiative petition constitutes a prior

restraint on speech. The United States Supreme Court

App. 4

declined to review the Oklahoma Supreme Court’s deci-

sion. Oklahoma Coalition to Restrict Abortion, Inc. v. Feld-

man, 113 S. Ct. 1028 (1993).

On August 3, 1994, Skrzypczak filed this suit against

the justices of the Oklahoma Supreme Court. She alleged

that she was neither a party nor the agent of any party

involved in In re Initiative Petition No. 349, but that she

would advocate the passage or defeat of SQ 642 if it were

placed on the ballot. She sought both a declaration that

pre-submission content review of initiative petitions con-

stitutes a prior restraint on core political speech and an

injunction compelling the Oklahoma Supreme Court to

complete the initiative petition process for SQ 642 and

refrain from performing pre-submission reviews in the

future. The Oklahoma Supreme Court moved to dismiss

the complaint for lack of subject matter jurisdiction. The

district court granted the motion, noting that Skrzypczak

advanced the same arguments that had been submitted to

the Oklahoma Supreme Court and the United States

Supreme Court. The court further stated that

Skrzypczak’s complaint, in effect, asked the court to over-

rule the Oklahoma Supreme Court’s decision in In re

Initiative Petition No. 349. The court reasoned that because

a federal district court does not have authority to directly

review final judgments of a state court in judicial pro-

ceedings, District of Columbia Court of Appeals v. Feldman,

460 U.S. 462 (1983), it consequently lacked subject matter

jurisdiction over the case.

App. 5

DISCUSSION

Although neither side raises the issue, we must

determine whether Skrzypczak has standing to raise her

claims. We are obliged to address standing sua sponte

because it involves a constitutional limitation on a federal

court’s jurisdiction, Bangerter v. Orem City Corp., 46 F.3d

1491, 1497 (10th Cir. 1995), and “federal courts are under

an independent obligation to examine their own jurisdic-

tion,” FW/PBS, Inc. v. City of Dallas, 493 U.S. 2:5, 231

(1990). The Constitution limits the jurisdiction of federal

courts to cases and controversies. U.S. Const. art. III, § 2,

cl. 1; Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 471

(1982). The case-or-controversy limitation requires,

among other things, that a plaintiff have standing. Lujan

v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992). A

party has standing when (1) she has suffered an injury in

fact, (2) there is a causal connection between the injury

and the conduct complained of, and (3) it is likely that the

injury will be redressed by a favorable decision. Id. A

plaintiff must support the elements of standing “with the

manner and degree of evidence required at the successive

stages of the litigation.” Id. “At the pleading stage, gen-

eral factual allegations of injury resulting from the defen-

dant’s conduct may suffice, for on a motion to dismiss we

‘presum[e] that general allegations embrace those specific

facts that are necessary to support the claim. ...’” Id. at

2137 (quoting Lujan v. National Wildlife Fed’n, 497 U.S. 871,

889 (1990)). We must accept as true all well-pleaded facts

and construe all reasonable allegations in the light most

favorable to the plaintiff. Hackford v. Babbitt, 14 F.3d 1457,

App. 6

1465 (10th Cir. 1994); see also Warth v. Seldin, 422 U.S. 490,

501 (1975).

We hold that Skrzypczak lacks standing because her

complaint fails to allege an injury in fact. Injury in fact

requires invasion of a legally-protected interest. Defenders

of Wildlife, 112 S. Ct. at 2136. Skrzypczak asserts that her

legally-protected interest in free speech is infringed by

pre-submission content review of initiative petitions.

Thus, she appears to claim that her right to free speech

depends upon SQ 642 going forward to a popular vote.

Skrzypczak mistakenly conflates her legally-pro-

tected interest in free speech with her personal desire to

have SQ 642 on the ballot. In removing SQ 642 from the

ballot, the Oklahoma Supreme Court has not prevented

Skrzypczak from speaking on any subject. She is free to

argue against legalized abortion, to contend that pre-

submission content review of initiative petitions is uncon-

stitutional, or to speak publicly on any other issue. Her

right to free speech in no way depends on the presence of

SQ 642 on the ballot. Moreover, she cites no law, and we

find none, establishing a right to have a particular propo-

sition on the ballot. Because she has failed to assert a

legally-cognizable interest, we hold that Skrzypczak lacks

standing to assert her claim.

The Supreme Court’s holding in Meyer v. Grant, 486

U.S. 414 (1988), does not undercut our conclusion. In

Meyer, the Supreme Court held that a Colorado law for-

bidding initiative proponents from paying people to cir-

culate petitions violated the First Amendment. The Court

described the speech involved in circulating initiative

petitions as “core political speech.” Id. at 421-22. The

App. 7

Court noted that Colorado’s prohibition against paying

petition circulators imposed two restrictions on political

expression: (1) it limited the number of messengers and

thus limited the size of the audience that could be

reached and (2) it diminished the likelihood that the

petitioners would gain the number of signatures neces-

sary to place the measure on the ballot, thus limiting their

ability to promote statewide discussion of the issues

raised by the initiative petition. Id. at 422-23. The Court

also held that the state’s power to ban initiatives entirely

does not include the power to limit political speech

regarding issues raised in initiative petitions. Id. at

424-25.

The Meyer case is inapposite because the law at issue

in that case curtailed free speech - proponents of an

initiative were forbidden to pay anyone to disseminate

their message and gather signatures for their petition. In

this case, the Oklahoma Supreme Court has done nothing

to restrict speech: neither Skrzypczak nor anyone else has

been silenced by pre-submission content review. More-

over, there is nothing in Meyer suggesting that there is a

protected right to have a particular initiative on the bal-

lot.

Reading the complaint liberally and construing all

reasonable allegations in Skrzypczak’s favor, we hold that

she has failed to identify a legally-protected interest that

has been invaded and thus has failed to allege an injury

in fact. For this reason, the judgment of the district court

is AFFIRMED.

App. 8

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MONICA SKRZYPCZAK,

an Oklahoma citizen,

Plaintiff,

YVONNE KAUGER, ROBERT E.

LAVENDER, ROBERT D. SIMMS,

HARDY SUMMERS, JOSEPH M.

WATT, RALPH B. HODGES,

RUDOLPH HARGRAVE,

ALMA WILSON and MARIAN P.

OPALA, in their official

capacities as Justices of the

Oklahoma Supreme Court,

No. CIV-94-1236-L

i ee ee ee ee ee ee

Defendants.

ORDER

(Filed Feb. 24, 1995)

This action arises out of the Oklahoma Supreme

Court’s order holding Initiative Petition No. 349 (“the

Petition”) invalid. See In re Initiative Petition 349, 838 P.2d

1 (Okla. 1992), cert. denied, __ U.S. __, 113 S.Ct. 1028

(1993). The Petition (which was numbered for ballot pur-

poses as State Question 642) “criminalizes and absolutely

prohibits abortions except in four narrow circumstances:

1) grave impairment of the female’s physical or mental

health; 2) rape as defined in 21 O.S. 1991 § 1111; 3) incest

as defined in 21 O.S. 1991 § 885; and 4) grave physical, or

mental defect of the fetus.” Id. at 6 (emphasis in original).

The Oklahoma Supreme Court held that the Petition was )

App. 9

unconstitutional and therefore invalid. Id. at 7. The Court

reasoned that:

The right of the initiative is precious and it is

one which we are zealous to preserve to the

fullest measure of the spirit and the letter of the

law. All doubt as to the construction of pertinent

provisions is resolved in favor of the initiative.

However, the right of the initiative is not abso-

lute. There are constitutional and statutory

limits on “he process. After [Planned Parenthood

v.] Casey, it became incontrovertibly clear that

the petition could not withstand a constitutional

challenge. Although state law may afford

greater rights than those guaranteed by federal

law, it may not curtail rights guaranteed by

federal law or the United States Constitution.

In re Initiative Petition No. 349, 838 P.2d at 12.

On August 3, 1994, plaintiff, Monica Skrzypczak,

filed this action seeking declaratory and injunctive relief

against the members of the Oklahoma Supreme Court in

their official capacity. Contending that the Court’s refusal

to place the Petition on the ballot constitutes a prior

restraint on core political speech, plaintiff seeks

(a) declaratory relief holding initiative petition

pre-submission content review [based on 34 O.S.

§ 8 and OKLA. CONST. art. II, § 1, as construed

and applied] and licensing to be a prior restraint

on core political speech in violation of the First

and Fourteenth Amendments, and (b) that a per-

manent, prospective mandatory injunction issue

compelling the Defendants to complete the State

Question 642 initiative petition process without

reference to the content thereof.

Complaint at ] 3.32.

App. 10

This matter is before the court on defendants’ motion

to dismiss for lack of jurisdiction. Defendants argue that

this court does not have the authority to review final

decisions of the Oklahoma Supreme Court. In ruling on

defendants’ motion, the court accepts the allegations in

the complaint as true. Holt v. United States, _. F.3d __,

1995 WL 34196 (10th Cir. 1995).

BACKGROUND

Pursuant to Oklahoma law governing the initiative

petition process, the proponents of the Petition (“propo-

nents”) filed petition pamphlets with the Oklahoma Sec-

retary of State on June 29, 1990. The petition pamphlets

were circulated from June 29, 1990 through September 27,

1990 and 106,357 signatures were obtained. On December

17, 1990, the Oklahoma Supreme Court entered an order

that started the time period for filing challenges to the

Petition. On December 31, 1990, Nancy Feldman and Kim

Little filed a protest to the legal sufficiency of the Peti-

tion. In their protest, Feldman and Little specifically chal-

lenged the constitutionality of the Petition. On January 4,

1991, Janet Taliaferro, Andrew Tevington and Pam

Fleischaker filed an objection challenging the numerical

sufficiency of the signatures.

On March 23, 1992, Feldman and Little filed a brief in

which they withdrew their federal and state constitu-

tional claims. Feldman and Little stated that:

In their Petition to Protest, the Protestants Feld-

man and Little raised many federal and state

Constitutional issues. Protestants also noted that

an evidentiary hearing would be required to so

App. 11

[sic] these issues could be properly explored by

the Court. Unfortunately, the Court has not

granted the Protestants an opportunity for an

evidentiary hearing. As a consequence, the Pro-

testants hereby withdraw their federal and state

Constitutional claims. Federal Constitutional

issues are raised below, but they are raised

solely for the proposition of showing what cur-

rent federal precedent is on abortion to demon-

strate that State Question 642, if approved, will

not effect any restrictions on first and second

tri-mester abortions unless current federal abor-

tion precedents are overturned.

Brief of Protestants Feldman & Little in Support of their

Protest to Initiative Petition No. 349, State Question 642 at

2-3 (Okla. filed Mar. 23, 1992). Thereafter, the United

States Supreme Court issued its decision in Planned Par-

enthood v. Casey, _.. U.S. ___, 112 S.Ct. 2791 (1992). In

light of that ruling and the fact that “[t]he constitu-

tionality of Initiative Petition No. 349 (abortion petition/

petition) is challenged as an issue by the protestants

Feldman and Little in their briefs”, the Oklahoma

Supreme Court directed the parties to file simultaneous

briefs on the constitutionality of the Petition. In re Initia-

tive Petition No. 349, No. 76,437, slip op. at 1 (Okla. July

14, 1992).

In their July 24, 1992, brief, the 642 Proponents

relied on Meyer v. Grant, 486 U.S. 414, 108 S.Ct.

1886, 100 L.Ed.2d 425 (1988), for the proposition

that the expression attendant to the initiative

petition process, from circulation through vot-

ing is core political speech, and cited the

Supreme Court’s express rejection in Meyer of

App. 12

the states’ rights argument that, because the ini-

tiative is a state-created right, the state may

impose limitations on that right.

Complaint at J 3.12.

On August 4, 1992, the Oklahoma Supreme Court

issued its ruling declaring the Petition unconstitutional.

The Court found that “if a properly preserved constitu-

tional challenge is leveled at a proposed law and a ruling

on the issue would prevent a useless election resulting in

the enactment of an unconstitutional statute, this Court

has the authority, as well as the responsibility, to decide

the matter.” In re Initiative Petition No. 349, 838 P.2d at 8.

The Court addressed and rejected proponents’ core politi-

cal speech argument. See id. at 9-11. The proponents

timely filed a petition for writ of certiorari in the United

States Supreme Court in which they argued that the

actions of the Oklahoma Supreme Court constituted a

prior restraint on core political speech. The United States

Supreme Court denied the petition on January 11, 1993.

See Oklahoma Coalition to Restrict Abortion, Inc. v. Feldman,

__._:; US. __, 113 S.Ct. 1028 (1993). Plaintiff filed this

action on August 3, 1994.

DISCUSSION

It is well-established that:

A federal district court does not have the

authority to review final judgments of a state

court in judicial proceedings; such review may

be had only in the United States Supreme Court.

28 U.S.C. § 1257 (1982). See District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482, 103

App. 13

S.Ct. 1303, 1314-15, 75 L.Ed.2d 206 (1983). Fed-

eral district courts do not have jurisdiction

“over challenges to state-court decisions in par-

ticular cases arising out of judicial proceedings

even if those challenges allege that the state

court’s action was unconstitutional.” Feldman,

460 U.S. at 486, 103 S.Ct. at 1317.

Van Sickle v. Holloway, 791 F.2d 1431, 1436 (10th Cir. 1986).

Plaintiff argues that this well-settled rule does not apply

in this case because defendants were not acting in a

judicial capacity when they issued their ruling in In re

Initiative Petition No. 349. Rather, plaintiff contends defen-

dants’ iuling was issued “in a non-judicial, ministerial

proceeding to which plaintiff was not a party.” Plaintiff's

Objection to Motion to Dismiss at 5.

In determining whether a proceeding is judicial in

nature, “[t]he form of the proceedings is not significant. It

is the nature and effect which is controlling.” In re Sum-

mers, 325 U.S. 561, 567 (1945). A judicial proceeding

“investigates, declares, and enforces liabilities as they

stand on present or past facts and under laws supposed

already to exist.” Prentis v. Atlantic Coast Line, 211 USS.

210, 226 (1908). In contrast, a purely ministerial task

encompasses no discretion or reasoning.

In ruling that the Petition was unconstitutional, the

Oklahoma Supreme Court determined the validity of the

Petition in light of existing law. In making its ruling, the

Court considered explicit legal arguments raised by the

parties and examined the Petition in light of existing

precedent. As the United States Supreme Court said in a

similar context, “This is the essence of a judicial proceed-

ing.” Feldman, 460 U.S. at 462.

App. 14

This court concludes that it is without jurisdiction to

review the Oklahoma Supreme Court’s final decision in

In re Initiative Petition No. 349. Review of that decision

was proper only in the United States Supreme Court,

which declined review. In this action, plaintiff advances

the same arguments that were previously submitted to

both the Oklahoma Supreme Court and the United States

Supreme Court. Plaintiff, in effect, asks this court not

only to overrule a decision of the Oklahoma Supreme

Court, but also to review the decision of the United States

Supreme Court denying review. As a court of limited

jurisdiction, this court is not permitted to review those

decisions. It makes no difference that plaintiff contends

that the Oklahoma Supreme Court’s action was uncon-

stitutional. This court does not have the power “to review

a final decision of the highest court of a jurisdiction in a

particular case.” Feldman, 460 U.S. at 486. In addition, this

court cannot grant the injunctive relief plaintiff seeks.

Federal district courts have no authority “to ‘direct state

courts or their judicial officers in the performance of their

duties.’ ” Van Sickle, 791 F.2d at 1436 n.5 (quoting Haggard

v. State of Tennessee, 421 F.2d 1384, 1386 (6th Cir. 1970)).

CONCLUSION

Defendants’ Motion to Dismiss (Docket No. 12) is

GRANTED. In light of this ruling, the court issues no

opinion with respect to the merits of plaintiff’s Motion

for Summary Judgment (Docket No. 3).

App. 15

It is so ordered this 24th day of February, 1995.

/s/ Tim Leonard

TIM LEONARD

United States District Judge

App. 16

IN THE UNITED STATES DISTRICT COURT FOR

WESTERN DISTRICT OF OKLAHOMA

MONICA SKRZYPCZAK, an

Oklahoma Citizen,

Plaintiff, No.

v. CIV-94-1236-L

YVONNE KAUGER, ROBERT E.

LAVENDER, ROBERT D. SIMMS,

HARDY SUMMERS, JOSEPH

M. WATT, RALPH B.

HODGES, RUDOLPH HARGRAVE,

ALMA WILSON and MARIAN

P. OPALA, in their official

capacities as Justices of

the Oklahoma Supreme Court,

i ee

Defendants.

JUDGMENT

(Filed Feb. 24, 1995)

Pursuant to the Order issued this date, this action is

DISMISSED for lack of jurisdiction.

Entered this 24th day of February, 1995.

/s/ Tim Leonard

TIM LEONARD

UNITED STATES

DISTRICT JUDGE

App. 17

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MONICA SKRZYPCZAK, an

Oklahoma Citizen,

Plaintiff -Appellants, No. 95-6156

YVONNE KAUGER, ROBERT E.

LAVENDER, ROBERT D. SIMMS,

HARDY SUMMERS, JOSEPH M.

WATT, RALPH B. HODGES,

RUDOLPH HARGRAVE,

ALMA WILSON and MARIAN P.

OPALA, in their official Capacities as

Justices of the Oklahoma Supreme

Court,

NT Sal Saat Sig Spel at ast Tae aah Sad aah Nougat Gap

Defendants - Appellees.

ORDER

Entered September 15, 1996

Before SEYMOUR, Chief Judge, PORFILIO, and TACHA,

Circuit Judges.

This matter comes on for consideration of appellant's

petition for rehearing and suggestion for rehearing in

banc.

Upon consideration whereof, the petition for rehear-

ing is denied by the panel that rendered the decision.

App. 18

In accordance with Rule 35(b), Federal Rules of

Appellate Procedure, the suggestion for rehearing in banc

was transmitted to all of the judges of the court who are

in regular active service. No member of the panel and no

judge in regular active service on the court having

requested that the court be polled on rehearing in banc,

Rule 35, Federal Rules of Appellate Procedure, the sug-

gestion for rehearing is denied.

Entered for the Court

PATRICK FISHER, Clerk

By: /s/ Denise Cordova

Denise Cordova

Deputy Clerk

App. 19

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MONICA SKRZYPCZAK, an

Oklahoma citizen,

Plaintiff, aaa iy

VS.

YVONNE KAUGER, ROBERT E.

LAVENDER, ROBERT D. SIMMS,

HARDY SUMMERS, JOSEPH M.

WATT,

RALPH B. HODGES,

RUDOLPH HARGRAVE,

ALMA WILSON, and

MARIAN P. OPALA,

in their official capacities as

Justices of the Oklahoma Supreme

Court,

CIV-94-1236-L

Nee Nee Ne Ne Nee ee ee ee ae Ne ee ee ee “ee es

Defendants.

CIVIL RIGHTS COMPLAINT

(Filed Aug. 03, 1994)

COMES NOW the Plaintiff and for her Complaint

against the Defendants, alleges:

JURISDICTION AND VENUE

1.1 This is a civil rights action against the Defen-

dants in their official capacities as Oklahoma Supreme

Court Justices.

App. 20

1.2 Acting under color of state law, the Defendants’

pre-submission content review and licensing of initiative

petitions subjects the Plaintiff or causes the Plaintiff to be

subjected to the deprivation of her freedom of expression

rights secured by the First and Fourteenth Amendments

of the United States Constitution.

1.3 This civil rights action seeks:

(a) a declaratory judgment;

(b) permanent, prospective, mandatory injunc-

tive relief; and

injunctive relief.

1.4 This Court has jurisdiction over Plaintiff's

claims for relief pursuant to the Freedom of Expression

Clause of the First Amendment to the United States Con-

stitution, the Fourteenth Amendment to the United States

Constitution, 42 U.S.C. § 1983 [civil rights], 28 U.S.C.

§ 1343(3) [civil rights], 28 U.S.C. §§ 2201 & 2202 [declara-

tory judgments], Fed.R.Civ.P. 57 [declaratory judgments],

42 U.S.C. § 1988 [attorneys’ fees and costs from the State —

not the individual Defendants — Pulliam v. Allen, 466 U.S.

522; 104 S. Ct. 1970; 80 L.Ed.2d 565 (1984) — in this case of

first impression — Thomas v. Metroflight, Inc., 814 F.2d 1506

(10th Cir. 1987)], and 28 U.S.C. § 1991 [federal questions].

1.5 Venue is proper in the United States District

Court for the Western District of Oklahoma pursuant to

28 U.S.C. § 1391(b); inasmuch as, the principal offices of

the Defendants are located in the Western District.

App. 21

PARTIES

2.1 The Plaintiff, Monica Skrzypczak:

(a) is an Oklahoma citizen;

(b) is an Oklahoma registered voter;

debate;

(d) was not a party to nor the agent of any

party in the Oklahoma Supreme Court orig-

inal jurisdiction (not appellate jurisdiction)

case of:

In re: )

INITIATIVE PETITION NO. 349 ) ng

) ,

STATE QUESTION NO. 642

[the abortion Initiative Petition];

(e) has standing to prosecute this First Amend-

ment, freedom of expression case to chal-

lenge speech restriction, i.e., pre-

submission content review and licensing of

initiative petitions because:

(1) her own rights of free expression have

been, are, and will continue to be vio-

lated by pre-submission content

review and licensing of initiative peti-

tions, and

(2) the very existence of pre-submission con-

tent review and licensing of initiative

petitions “may cause others not before

the court to refrain from constitutionally

protected speech or expression,” [Virginia

v. American Booksellers Assoc., Inc. 484

App. 22

U.S. 383, 392-93; 108 S. Ct. 636, 643; 98

L.Ed.2d 782, 793-94 (1988)]; and

(g) in not barred by the Younger v. Harris, 401

U.S. 37; 91 S. Ct. 746; 27 L.Ed.2d 669 (1971),

abstention doctrine to prosecute the claims

alleged infra because this federal Plaintiff

was not a party nor the agent of a party in

the aforementioned Oklahoma Supreme

Court original jurisdiction case, Case No.

76,437; [Cheffer v. McGregor, 6 F.3d 705, 709

(11th Cir. 1993) (rev'd on other grounds, 1994

WL 285847)].

2.2 The Defendants, Yvonne Kauger, Robert E. Lav-

ender, Robert D. Simms, Hardy Summers, Joseph M.

Watt, Ralph B. Hodges, Rudolph Hargrave, Alma Wilson,

and Marian P. Opala, were and are, at all times material

to this Complaint, Justices of the Oklahoma Supreme

Court who have acted under color of state law.

2.3 Plaintiff sues all Defendants in their official

capacities.

II]

FIRST COUNT

PLAINTIFF vs. KAUGER, LAVENDER, SIMMS,

SUMMERS AND WATT

{“Count I Principal Defendants” ]

and

HODGES, HARGRAVE, WILSON,

AND OPALA

[“Count I Nominal Defendants” ]

(Declaratory and Permanent, Prospective

Mandatory Injunctive Relief)

NT EE eee

App. 23

COUNT ONE BACKGROUND FACTS

3.1 On June 29, 1990, the Oklahoma Coalition to

Restrict Abortion, Inc., and Fred W. Sellers, Jr. [the “642

Proponents”] filed their initiative petition pamphlet,

including the text of the proposed law, State Question 642

with the Oklahoma Secretary of State.

3.2 During the ninety-day period from June 29,

1990, through September 27, 1990, the petition pamphlets

were circulated, and 106,537 signatures were obtained

and filed.

3.3. On December 17, 1990, the Oklahoma Supreme

Court entered an order, the publication of which started

the time period for filing challenges to State Question

642.

3.4 On December 31, 1990, Nancy Feldman and Kim

Little filed a protest to the legal sufficiency of the 642

petition, claiming in paragraph 10 of their protest that

State Question 642 was unconstitutional.

3.5 On January 4, 1991, Janet Taliaferro, Andrew

Tevington, and Pam Fleischaker filed a numerical suffi-

ciency objection to the count claiming that the 642 Propo-

nents had submitted fewer valid signatures than the

number required to bring State Question 642 to a vote of

the people.

3.6 On March 23, 1992, Feldman and Little filed a

brief, which stated:

[Respondents] hereby withdraw their federal

and state constitutional claims.

App. 24

3.7 Nevertheless, on July 14, 1992, the five Count I

principal defendants issued a briefing order requiring the

642 parties to file simultaneous briefs on the constitu-

tionality of State Question 642, i.e., on the content of State

Question 642.

3.8 Justice Hodges dissented from the sua sponte

July 14, 1992, briefing order because neither the 642 Pro-

ponents nor the 642 Respondents had requested a consti-

tutional review of the proposed statute.

3.9 Justice Hodges also revealed that, prior to the

July 14, 1992, briefing order, an opinion approving the

initiative for a vote of the people had been prepared and

was being readied for publication, signifying that the 642

Proponents had overcome the Taliaferro/Tevington/

Fleischaker objection to the count.

3.10 On July 15, 1992, the 642 Proponents filed a

suggestion to the court emphasizing that, on March 23,

1992, Feldman and Little had withdrawn their federal

and state constitutional claims, and that the time for

filing protests had expired on January 7, 1991.

3.11 Briefs were filed by the 642 parties and the

Oklahoma Attorney General, even though the 642 Propo-

nents had filed a motion to disqualify the Attorney Gen-

eral, because the Attorney General’s role in an Oklahoma

initiative petition proceeding is limited by law to deter-

mining whether the proposed ballot title is in legal form

and in harmony with the law.

3.12 In their July 24, 1992, brief, the 642 Proponents

relied on Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100

L.Ed.2d 425 (1988), for the proposition that the expression

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| IAIN II. AA OD eB

App. 25

attendant to the initiative petition process, from circula-

tion through voting, is core political speech, and cited the

Supreme Court’s express rejection in Meyer of the States’

rights argument that, because the initiative is a state-

created right, the state may impose limitations on that

right.

3.13 On August 4, 1992, the five Count I Principal

defendants entered an order in Case No. 76,437 striking

State Question 642 “from the ballot.” In re Initiative Peti-

tion 349, State Question 642, 838 P.2d 1 (Okl. 1992).

3.14 The first part of the August 4, 1992, order said

that the proposed law, State Question 642, was uncon-

stitutional under the United States Constitution, but sug-

gested:

[T]he proponents may present a proper petition

for submission to a vote of the people.

838 P.2d, at page 7 (emphasis added).

3.15 In the second part of the order, the Count I

Principal Defendants recognized, but rejected, the core

political speech argument raised in the 642 Proponents’

July 24, 1992, brief.

3.16 In the second part of said order, the Count I

Principal Defendants conceded content review:

Nothing in this opinion should be read to limit

the content of any petition circulated. However, if

an unconstitutional measure garners enough

signatures to be presented to the people and is

challenged on constitutional grounds, pre-sub-

mission judicial review is appropriate.

838 P.2d, at page 10 (emphasis added).

App. 26

3.17. In the August 4, 1992, order, the Count I Princi-

pal Defendants attempted to justify initiative petition

pre-submission content review by stating that a “costly”

and “unnecessary” vote of the people could be avoided.

838 P.2d, at 8.

3.18 The Count I Principal Defendants refused to

license State Question 642 because of its content.

THE RIGHTS DEPRIVED

3.19 The expression attendant to the initiative peti-

tion process, from circulation through voting, is core

political speech.

3.20 The Defendants’ licensing of a state question

based on its content violates the First and Fourteenth

Amendments as a prior restraint on core political speech.

3.21 Although a state is not required to provide its

citizens with the right of the initiative, the exercise of that

right, once created, may not be restricted on the basis of

an initiative’s content.

3.22 The Defendants’ pre-submission, content

review of initiative petitions functions as a licensing of

political speech, that is a prior restraint on core political

speech.

3.23 The burden that must be overcome when

attempting to regulate political expression is “exacting

scrutiny,” that is “well-nigh insurmountable.”

3.24 “Costly” and “unnecessary” are not compelling

state interests sufficient to survive First Amendment

“exacting scrutiny.”

ae. TT Te

App. 27

3.25 Restrictions on the advocacy for the passage or

defeat of initiative petition legislation impose an imper-

missible burden on political expression in violation of the

First and Fourteenth Amendments.

42 U.S.C. § 1983 CLAIM

3.26 The aforementioned acts violate the civil rights

of the Plaintiff protected by 42 U.S.C. § 1983.

3.27, The conduct complained of constitutes a viola-

tion of Plaintiff's freedom of expression rights guaran-

teed by the First and Fourteenth Amendments.

3.28 Plaintiff currently suffers the deprivation of

those rights by the Defendants’ aforementioned actions

performed under color of state law [34 O.S. § 8 and

OKLA. CONST. art. II, § 1, as construed and applied].

3.29 Plaintiff will participate in the advocacy con-

cerning the passage or defeat of State Question 642 as

soon as State Question 642 is licensed.

3.30 The violation of Plaintiff’s constitutional rights

has caused and will continue to cause Plaintiff to suffer

actual and irreparable injury.

3.31 Plaintiff has no adequate remedy at law to

correct the continuing deprivation of her constitutional

rights.

RELIEF REQUESTED

3.32 Plaintiff requests: (a) declaratory relief holding

initiative petition pre-submission content review [based

on 34 O.S. § 8 and OKLA. CONST. art II, § 1, as construed

and applied] and licensing to be a prior restraint on core

App. 28

political speech in violation of the First and Fourteenth

Amendments, and (b) that a permanent, prospective man-

datory injunction issue compelling the Defendants to

complete the State Question 642 initiative petition process

without reference to the content thereof.

SECOND COUNT

PLAINTIFF v. ALL DEFENDANTS

(Declaratory and Permanent, Prospective

Preventive Injunctive Relief)

COUNT TWO BACKGROUND FACTS

4.1 On July 19, 1994, all Defendants issued an opin-

ion in the federal term limits initiative petition original

jurisdiction (not appellate jurisdiction) case of:

In re: ) Case No.

INITIATIVE PETITION NO. 360 ) 82 648

STATE QUESTION NO. 662 ) :

65 O.B.J. 2546 (Okl. 1994).

4.2 In the State Question 662 case, the Defendants

once again performed pre-submission content review and

licensing of an initiative petition.

4.3 The Defendants licensed State Question 662

even though the Defendants acknowledged that at least

three courts, including a United States Federal District

Court, had held similar term limit provisions unconstitu-

tional under the United States Constitution. 65 O.B.J., at

2549.

earner eternal

App. 29

THE RIGHTS DEPRIVED

4.4 The Plaintiff incorporates the allegations of

paragraphs 3.19 through 3.25, supra.

42 U.S.C. § 1983 CLAIM

4.5 The Defendants are arbitrarily and capriciously

“picking and choosing” the initiative petitions to be

licensed for the ballot by focusing on the content of each

state question in violation of the First and Fourteenth

Amendments, including the equal protection clause of the

Fourteenth Amendment [Police Department v. Mosley, 408

U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)].

4.6 Plaintiff incorporates by reference the allega-

tions of paragraph 3.26 through 3.28 and 3.30 through

3.31, supra.

RELIEF REQUESTED

4.7 Plaintiff requests: (a) declaratory relief holding

initiative petition pre-submission content review [based

on 34 O.S. § 8 and OKLA. CONST. art. II, § 1, as con-

strued and applied] and licensing to be a prior restraint

on core political speech in violation of the First and

Fourteenth Amendments, and (b) that a permanent, pre-

ventative injunction issue preventing the Defendants

from performing initiative petition pre-submission con-

tent review and licensing in futuro.

PRAYER

Wherefore, Plaintiff prays for judgment as requested

in paragraphs 3.32 and 4.7, supra, plus an award of costs,

App. 30

expenses, and reasonable attorneys fees pursuant to 42

U.S.C. § 1988, and all other relief to which Plaintiff may

be justly entitled.

MICHAEL MINNIS & ASSOCIATES,

P.C.

By /s/ Michael Minnis

Michael Minnis,

OBA #6251

David McCullough,

OBA #10898

3160 Liberty Tower

100 North Broadway

Oklahoma City, OK 73102

(405) 235-7686

ATTORNEYS FOR PLAINTIFF

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.