# Petition for Writ of Certiorari — Skrzypczak v. Kauger

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1115

## Text

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.

a

Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Tenth Circuit
a

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)?

ii
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
I Oe acd RRM h dsb Sas 044d de ee bkeeeneeee 1
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

iv

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

Vv

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

vi

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);

(C) [on the subject matter jurisdiction issue]
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.

+

a

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).

10

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

© As was stated in the 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, 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.

ee

11

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);

12

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.”

13

[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).

14

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.

e

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

15

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

16

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,
v.

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

i

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,
V.

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 )

TT

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

V.

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:

I
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

(c) permanent, prospective preventative
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

II
PARTIES

2.1 The Plaintiff, Monica Skrzypczak:
(a) is an Oklahoma citizen;
(b) is an Oklahoma registered voter;

(c) is an advocate and voter in re the abortion
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.

IV
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.

V
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1961%3A1. Public record. Not legal advice.