Professional Documents
Culture Documents
_________________________
No. 96-2122
SETH BERNER,
Plaintiff, Appellant,
v.
Defendant, Appellee.
_________________________
_________________________
Before
_________________________
Attorney
General,
and
Thomas D.
Warren,
___________________
State
_________________________
Attorney
Seth Berner
claims
that
lawyers have
an
absolute right,
protected
by the
First
judicial proceedings.
We reject that
I.
I.
BACKGROUND
BACKGROUND
The
complaint
facts,
and construed
recounted readily.
drawn
from
in his favor,
F.2d
13,
of the Maine
1995, Berner
seated in
courtroom,
plaintiff's
verified
16 (1st
Cir.
1989), can
be
associate justice
was
the
waiting for
his
the
Superior Court.
gallery of
turn to
appear
On
October 31,
Judge
Delahanty's
before the
court.
Berner wore a
on
on
1
1
Maine
Maine
opposition
to
Won't
Won't
his lapel.
Discriminate."
Discriminate."
This
statewide referendum
legend
expressed
Maine
voters were
Neither the
that
The button
court.
At
Delahanty
some point
during
the
day's
called Berner
to the
bench.
The
proceedings,
Judge
following exchange
took place:
____________________
of sexual orientation.
It
THE COURT:
THE COURT:
_________
the
Mr. Berner . . .
courtroom?
ATTORNEY BERNER:
ATTORNEY BERNER:
_______________
happened
THE COURT:
THE COURT:
_________
take sides.
We don't
ATTORNEY BERNER:
ATTORNEY BERNER:
________________
reflect
that
want
don't
the
think
record
there's
to
any
THE COURT:
THE COURT:
_________
be, but
the
courtroom is
not
that may
political
forum.
ATTORNEY BERNER:
ATTORNEY BERNER
________________
Your
honor,
I want
the
not comply
with the
During
Berner
that he
court's order,
chambers conference
lawyers wearing
planned to
Berner removed
later
perpetuate
political buttons
that day,
the
the button.
judge told
the prohibition
in his
against
courtroom unless
did
and
where he
U.S.C.
1983 (1994).
single claim:
that the
In support of this
caused any
Delahanty
His rifle-shot
complaint
other ornamentation
contained a
wearing in his
supporting causes,
such
had not
courtroom of
as crucifixes
and
The
Berner's
motion
for
preliminary
injunction,
of standing and
finessed
finding
the former by
an
The court
that Berner
F. Supp. 62,
Turning
court
held that
specific analysis of
standard was
the forum-
of
different fora).
Supp. at 63.
Because the
Judge
to limit the
wearing of political
buttons "need
only be:
(1)
reasonable in light of the purpose which the court serves and (2)
viewpoint neutral."
Id.
___
this premise,
the judge
reasonable attempt to
appearance
Building on
was a
the inevitable
viewpoint and
advance another."
"reasonable
Id.
___
viewpoint-neutral restriction,"
that the
complaint stated
granted.
Id.
___
no claim upon
Judge Carter
which relief
ruled
could be
On
analysis.
He
appeal,
Berner
assails
the
district
court's
undue emphasis on
Cornelius; that
_________
it erred
the
in gauging
the reasonableness of
defendant's tolerance of
the
appropriate weight to
tinged ornamentation.
II.
II.
SCOPE OF REVIEW
SCOPE OF REVIEW
We evaluate de novo a
action
Blanchard, 83
_________
F.3d 1,
a cognizable claim.
3 (1st Cir.
1996).
In assaying
See Aulson v.
___ ______
such a
preceded it,
507 U.S. 163, 164 (1993); Dartmouth Review, 889 F.2d at 16.
________________
with
the
merits of
the
occasional availability
e.g.,
____
of
such a
While we
terpsichorean
recognize
the
course,
see,
___
(explaining
question
so
complaint.
that a court
may bypass a
difficult jurisdictional
jurisdiction); see
___
inquiry
into
standing),
in
this
appellate
lambada
we
are
action.
See Warth
___ _____
v.
Seldin, 422
______
U.S. 490,
498 (1975);
New
___
Gardner, 99
_______
jurisdiction
and
controverted case.
that
an
confirm the
standing
before
which, in
here,
no
Hence, we
the
light
of the
merits
danger
sparingly.
tackling
rudiments such
of
as
exception,
ensuing decision on
existence of
that an
sterile by the
substantial
doubt attaches
choose to confront
to
the
threshold issue.
standing question
III.
III.
STANDING
STANDING
The
establish that
criteria
for
standing are
a dispute qualifies
well-rehearsed.
as an Article III
To
"case" or
"controversy,"
enabling it to
obtain a federal
court audience,
____________________
1983 to
or omission taken
unless
declaratory
Berner's suit,
Stat.
Berner's
redress
3853 (1996).
complaint
Judge
seeks
the amendment as
decree
violated
Pub. L. 104-317,
Delahanty
declaratory
was
as
or
309(c),
presumably because
well
as
injunctive
nor raised
the
party
seeking
to invoke
federal
jurisdiction
must first
demonstrate that
(1) he
or she
actual
or threatened
the
personally has
suffered some
injury as a
challenged conduct;
result of
(2) the
injury can
likely
will
be
redressed
by
however, that
at 13.
We
hasten to add,
a special gloss on
cases in
In such
show
that he
has suffered
(or
only if the
has been
complainant can
threatened with)
"an
concrete
and particularized,"
555, 560
Lujan v.
_____
will again
likelihood that he
conjectural or hypothetical."
or imminent, not
at 460 (citations
"to
In
addition
U.S.
bounded by
is
to
these
benchmarks
of
constitutional
United
______
Under
rest on
its own
ordinarily cannot
When
the First
bottom.
See
___
id.
___
sue to assert
Amendment is
in
(stating that
the rights
plaintiff
of third
parties).
play, however,
the Court
has
relaxed
risk of washing
See Secretary of
___ ____________
State of Md. v.
____________
Litigants
are
prediction or
[policy's]
not
violated, but
the
constitutionally
of a
assumption that
very existence
before
because
court
may cause
to
protected
the
others
refrain
from
speech
or
expression.
Against
persuade us
button
this
backdrop,
that, even if
ban as
a past
Judge
Delahanty
violation of
his First
strives
to
challenge the
Amendment rights
(say, by a
declaratory
he has no standing
to seek
likelihood that
he will
again face
similar harm.
We
are not
convinced.
Berner is
practicing
a member
lawyer who
of the Maine
regularly handles
bar and
a full-time
litigation.
Born
Maine is
not California.
The superior
court is
Moreover,
the principal
tit. 4,
in
Stat. Ann.
a collision course.
Berner's
waned,
vowed
and he
opportunity, he
stated policy,
has
that, when
would not
to
wear
once
hesitate, but
judge,
political
courtroom.
The
too,
determination
to prohibit attorneys
for Judge
button
remains
again afforded
in
the
Delahanty's
the
steadfast
jurist's
in
his
pins in
his bailiwick.
On balance, the
satisfy
imposes,
courts.
not
only
the standing
by the
requirements
that
Article III
See
___
F.3d
Frank, 968 F.2d 1373, 1377 (1st Cir. 1992) (elucidating doctrinal
_____
parameters of Lyons).
_____
In
constitutes
any event,
a threat
Berner
not only
alleges
to
that
his own
the
right to
button
ban
political
Berner
might
jurisdiction
well
to seek
prediction" that
be
able
to
invoke
equitable relief
the policy
Thus, even if
may chill
the
based
federal
on the
the general
again,
courts'
"judicial
exercise of
free
speech.
Broadrick, 413
_________
U.S. at
612.
Judge Delahanty's
as a result of such a
expressing
appearing
opinions
before
sufficiently
Amendment
by
this
concrete
protections
probability that,
wearing
judge.
and
to
political
In
paraphernalia
itself,
particularized
ground
a claim
of
from
when
this
can
injury
to
First
standing.
See
___
be
392-
93 (1988).
IV.
IV.
THE MERITS
THE MERITS
In
erred
attempting to ascertain
in granting the
defendant's motion to
must
assume
that the
determine
from
complaint's
that
factual
coign
of
relief.
52
vantage
are
whether
the
true
and
pleading
(1st Cir.
12(b)(6)
averments
1990) (explaining
that
dismissal is appropriate
an affirmance
"only if it
of a
Rule
clearly appears,
is not
a virtual
inferential,
mirage.
To survive
a motion
to dismiss,
respecting
each
material
element
direct or
necessary
legal theory."
to
Gooley v.
______
10
moreover,
F.2d 513,
allegations,
"bald
assertions,
unsubstantiated conclusions,
no weight.
515 (1st
Cir. 1988).
It
is,
adequacy of a plaintiff's
periphrastic
[and] outright
circumlocutions,
vituperation" carry
These
in
a vacuum.
Berner's
Thus,
to
evaluate properly
the sufficiency
of
the averments
necessary to
state a claim
for violation
of the
an entitlement to relief.
A.
A.
expression
A curtailment of speech
is,
in fact, constitutionally
v. New
___
if the government's
justification
for
the
restriction
is
inadequate,
see
___
____________________
3Rule
12(b)(6) provides
motion to dismiss,
in pertinent
part that
if, on
are presented
decision
effectively
court's
in
any
the filing
on
these
materials
(and,
thus,
Ponce Fed. Bank, 958 F.2d 15, 18-19 (1st Cir. 1992), and we guide
_______________
our analysis accordingly.
11
505 U.S.
In
Cornelius,
_________
the Court
articulated
a three-tiered,
interest
the
interests
of
those
who
wish
to
use
the
property
expressive purposes:
[S]peakers can
be
excluded
from
public
compelling state
exclusion is
interest.
interest
narrowly drawn to
and the
achieve that
as
public
or means of
forum
speakers
for
cannot
be
excluded
without
compelling
governmental interest.
Access to a nonpublic
restricted as long as
effort
to
suppress
expression
merely
Cornelius,
_________
marks
473 U.S.
omitted);
at 800
accord
______
plaintiff seeks to
to a policy
U.S.
the
v.
quotation
Perry Local
____________
45-46 (1983).
Thus, when
challenge addressed
expressive activity
on
restriction
____________________
37,
that restricts
that
and internal
or practice
(citations
is unreasonable
(which,
in
a nonpublic
720, 726-27
(1990).
12
is biased, and,
The
posture.
appeal
before
Ordinarily,
provide a suitable
a complaint,
vehicle for
government's justification
instances, however,
stated in
us arises
for
in
standing
evaluating the
restricting
itself or plain
In
the
some
from even
a cursory
state has an
will not
adequacy of
speech.
the
alone,
the restriction
a motion to
slightly awkward
hopes to survive
improper or insufficient
motivation.
Rather,
directly
or
by
fair
inference,
a finding
that
the
state's
B.
B.
We
complaint.
turn
now
to
the
sufficiency
of
the
complaint adequately
protected form of
alleges infringement of
expression
that the
a constitutionally
of Airport Commissioners v.
_________________________
instant
wearing an emblem.
482 U.S.
See Board
___ _____
569, 576
U.S. 503,
505 (1969).
13
typical of
to the apparent
and,
especially, a
United States v.
______________
courtroom
Bader,
_____
698
is a
F.2d 553,
1993),
function
provide
nonpublic
556
A courthouse
forum.
(1st Cir.
is to
spotlight shifts
locus in
1994).
which
See
___
1983);
(E.D.N.C.
A courtroom's very
civil and
criminal
the
proper
the judge
rational
proper
reflection
Ryan
____
1995).
and
disinterested
We think
it is
of
particularly,
424
will
be
that the
includes the
right
favoritism
in
judicial
proceedings,
U.S.
not
1095 (7th
these responsibilities
appearance
judgment
discharge of
v. Spock,
_____
disrupted."
Cir.
In
828, 839
(1976)
(finding that
and
Cf. Greer
___ _____
ban
on
political speeches
and
demonstrations
on
military
bases
"is
politically
neutral
military
establishment
under
civilian
control").
14
within
this
apolitical
significance worn
by attorneys
espousing personal
to compromise
which
every
lawyer's
paradigm.
Emblems
in the courtroom
of
political
as a
means of
the environment
of impartiality
jurist aspires.
injection
of
As an
private
and fairness
officer of
political
be thought
to
the
court, a
viewpoints
into the
such conduct,
ideally
should cloak a
the partisan
Here,
Judge
ordering Berner to
judicial
extraneous
process
Delahanty
stated
clearly
that
he
was
ought
political
not
simultaneously
debates.5
This
"take
sides"
explanation is
in
entirely
consistent with a
desire to
ensure that
the courtroom
remains
Evaluating
of the forum
circumstances," Cornelius,
_________
not even-
the courtroom.
such a reason.
Most
of the courtroom, it
is unreasonable to prohibit
political pins
____________________
5We consider
Judge Delahanty's
as
15
that do not
in
invalidated
"nondisruptive
button
ban
speech
that contains
He
emphasizes
which,
among
such as
a political
that the
other
the
Justices
things,
wearing of
message."
there
proscribed
a T-shirt
482 U.S.
or
at 576.
______________
That
case
involved
of
expressive
an
overbreadth
challenge
activity,
and,
by
prohibiting
to
the universe
all
___
protected
Court held
that, even
government
interest
if an
could
Id.
___
at 575.
airport is
justify
plaintiff
has
addition,
an
presumably
not
See id.
___ ___
all
___
attacked
have
it
as overbroad
terminal,
been
in
allowed
which
absent
forum, no
forms
of
The prohibition
airport
would
a nonpublic
excluding
here is hardly of
or
free
the
events, the
vague.
In
expression
challenged
ordinance,
differs
"whatever right
extremely
U.S.
substantially
to `free
circumscribed."
1030, 1071
(1991).
from
speech' an
Gentile
_______
For
courtroom,
attorney has is
in which
[already]
inapposite.
Stripping
still
leaves
intact
away
his
the authority
bareboned
16
on which
contention
Berner relies
that
it
is
unreasonable
to restrict non-disruptive
speech.
As
applied to
In the first
protected
speech.
Berner's button
Mindful
raises
are others.
caused no commotion,
that advocates a
issue
There
the
So
even though
specter of
here:
a pin
contested political
politicalization
and partiality.
judge to bar
it created a stir.
See Cornelius,
___ _________
of whether
"avoiding
the
appearance
of political
favoritism
is
a valid
There
nature,
courtrooms
matters.
Whether
demand
or
intense concentration
not
disruptive,
at the very
buttons
By their
on
important
that
least distracting.
display
Lawyers
who wear such emblems serve not only as vocal advocates for their
of their
blind
eye
to
attorneys'
If
espousals
a presiding judge
of
political
turns a
sentiments
suffer.
As a
fallback
position, Berner
maintains that
Judge
17
banned his
Amendment.
We
this lack of
disagree.
The
allowed other
emblems in
essence
of
the
First
viewpoint-based
among
particular
ideology or
in order
outlook.
Cornelius,
_________
not
prevent
category of
government
See
___
or suppress
Lamb's Chapel
_____________
508 U.S.
v. Center
______
384, 393-94
(1993);
officials from
speech based on
officials from
to advance
restricting
selectively granting
safe passage
an
entire
preclude such
to speech
of
See, e.g.,
___ ____
Gay Lesbian Bisexual Alliance v. Pryor, 110 F.3d 1543, 1549 (11th
_____________________________
_____
Cir. 1997).
the
specific motivating
ideology
opinion or
the speaker
rationale
or the
perspective of
is the
speech is the
of Mass., Inc. v.
______________
18
1, 9-12 (1st
Cir.
1994).6
This
case
does not
implicate
either of
these
iterations.
There is
simply
no
basis in
the
complaint
the
complaint comes
Berner's
pin,
wearing
in
causes,
such as
fraternal
his
the
is
an
"[d]efendant
courtroom
crucifixes
orders."
averment
Taken
of
has
other
that,
as
true,
despite
this
outlawing
permitted
ornamentation
for
an
routinely
and insignia
for
supporting
armed forces
averment
the
is
or
not
that
the
causes
promoted
by
the
button or
permitted symbols
bear
an
such
that
allowing these
excluding
his pin
other
emblems in
rationally may
be
the
seen as
courtroom but
a discriminatory
Nor can
the plaintiff
convincingly mount
a claim
of
____________________
6In
refused
allow
the
its
the defendant, a
plaintiff
to
post
message"
anent
the
use
the
permitted
of
service
entendre to
condoms
"while
public
panel
state agency,
and
42 F.3d at 10.
prohibited
The
advertisements,
focusing
equivalent levels
sets
of explicitness,
and concluded
defendant's differential
advertisements
constituted
to the appearance of
that the
treatment of
"content
two
similarly
discrimination
viewpoint discrimination"
Id. at 11.
___
19
on the prohibition of
and religious
ornamentation (which,
in his
view, also
advance
political causes).
an inference of
ways
restriction.
do not
in any
equivalency
and
justification.
military and
religious
political
religious
particular
candidate
emblems,
or cause.
No substantial
buttons, on the
on the
be drawn
In
second
one hand,
hand.
to express a view on
contrast,
do not expressly
military and
advocate a
particular
and
institution or a
beliefs.
Thus,
broad band of
reasonably
may
decide
expressly champion
convictions, values,
to
expression in
prohibit
pins
specific political
that
primarily
and
at the
same
stances and
religious accessories.7
____________________
7This case
whether, and
if so,
us to address the
a judge
religious insignia.
20
question of
has the
We leave that
tokens
does
not
compromise
the
propriety
of
an
bar such
otherwise
To say
allegations
of
more
the
would be
plaintiff's
supererogatory.
complaint,
no
Based on
the
inference
of
V.
V.
CONCLUSION
CONCLUSION
We need go no further.8
An attorney is
their sleeves
In a courtroom setting,
that matter).
Judge Delahanty's
ensuring
the
appearance
that
of fairness
and
impartiality
in the
supportable allegation
Consequently, Berner's
____________________
8In
this venue,
Cornelius does
_________
this case.
Berner argues,
not supply
In Berner's
for
the appropriate
the first
time, that
legal guidepost
for
of whole cloth,
we take a
simpler route.
court, Berner
acknowledged Cornelius's
_________
relevant
substantial
and
Consequently, he
portions
has forfeited
F.2d 13,
In the district
suzerainty and
of
up
conceded
the
ensuing
analysis.
his right to
argue a
new, much
16 (1st Cir.
1991); Clauson v.
_______
Smith, 823
_____
21
complaint
fails
to state
claim
upon
which relief
can
be
granted.
Affirmed.
Affirmed.
________
22