Mary Gormley v. Director, Connecticut State Department of Probation and Attorney General of the State of Connecticut

appeal, appel- days the Air Act. On Within 20 after the date of the deci- Clean they alleged three in- Supreme lants contend that sion of the in Illinois v. perform Milwaukee, stances of EPA refusal to non-dis- counsel in the instant case cretionary disagree. briefs, duties. We they if are so ad- supplemental file - vised, upon any respect issue with to the First, the EPA appellants claim that complaint against dismissal of the as LIL- mandatory duty has a under 42 U.S.C. CO, to, the bear- including, but not limited 7506(b) suspend grants federal under § decision ing, any, of the Court’s the Clean Air Act because of the failure of filing of Upon in Illinois v. Milwaukee. the implement of New York to trans receipt by supplemental upon such briefs or portation required by controls as 42 U.S.C. they us of word from counsel that do legislative history 7506(b), 7410. § § briefs, supplemental intend to file the case however, provision ap indicates that this panel this will be taken submission plies only required by to revisions the 1977 respect with jurisdiction which retains H.Conf.Rep. amendments to the Act. No. against the dismissal as LILCO. 95-564, Cong., 1st (Aug. 95th Sess. 156-58 3, 1977), reprinted quired York & Admin.News the 1977 amendments. transportation under provisions ^[1977] control 1536-39. The New existence U.S.Code plan was re prior Cong. the district court to missed the enter The Clerk of this Court officers. Taxation of costs is to be held judgment affirming complaint the extent as against is directed judgment EPA and it dis- abeyance pending our determination of Second, appellants claim that respect to the district appeal EPA has a mandatory duty to enforce its against complaint court’s dismissal of the findings transporta that New York’s LILCO. plan inadequate tion control and its findings implementation that the state jurisdic- in part; Affirmed decision and (SIPs) plans Jersey of New York and New part. tion reserved in inadequate.2 again legisla were Here dispositive. tive history is It demonstrates the 1977 amendments nullified the duty pre-amendment

EPA’s enforce 95-127,

findings. S.Rep. Cong., No. 95th 10, 1977). (May 1st Sess. Mary GORMLEY, Appellant, Third, appellants claim that EPA mandatory duty impose has a re DIRECTOR, CONNECTICUT STATE DE- gional control measures ozone.- The PARTMENT OF PROBATION and At- short answer to this claim is that the EPA torney General of the State of Connecti- statutory duty has no at this time to issue cut, Appellees. regional regulations appel ozone No. Docket 79-2241. primary authority lants seek. The to issue regulations control rests with the states. United Appeals, States Court of Second Circuit. We affirm the district court’s dismissal of appellants’ against claims the EPA and its Argued March officials. May Decided respect With portion judg- 1,1980. Certiorari Denied Dec. ment of the district court which dismissed See 101 S.Ct. 591. LILCO, complaint against reserve pending decision review Illinois, Milwaukee, supra. Court of requires quality

2. 42 each bient air § U.S.C. 7410 state to devel- standards established op government. a SIP. The SIP establishes emission limita- federal Manchester Environmen- EPA, pollution (2 tions and abatement measures in or- tal Coalition v. 1979). der to achieve and maintain the national am- Conn., Hartford, Rubin, appel- for

Joseph lant. Beach, Jr., Atty., E. Asst. State’s

Robert Conn., appellees. Wallingford, WATERMAN, MANSFIELD Before TIMBERS, Judges. Circuit husband, “going to TIMBERS, and that Judge: Circuit appel- time. While complainant this get” symptoms segment of a sick One remarks, insulting these shouting lant was increasing frequency with society our is the walked her friend toward complainant and is used to harass and This incident the restaurant and entered. states, as well annoy Many others. disorderly conduct for the basis government, have enacted statutes federal appellant prosecuted was charge for which criminal of- which make that conduct a 53a-182(a)(2) (Rev. § under Conn.Gen.Stat. fense. 1958, Supp.1979). statute —the tele Such a Connecticut between The incident occurred second phone harassment statute1 —is before us evening. Ap- the same 9:00 and 10:00P.M. appeal judgment the instant from a en on Restaurant telephoned Hardee’s pellant denying in tered the District Connecticut working. The was complainant where appellant Mary Gormley’s petition for a passed the call manager who received corpus. questions The writ of habeas in employee who turn receiver to another whether that under presented are complainant. When receiver to passed the in the appellant which was convicted Con phone she heard complainant got to courts, unconstitutionally necticut state is in- substantially the same appellant repeat applied. overbroad on face and as We earlier had made in sulting remarks she agree with the district court and state Appellant evening lot. add- parking in the judg courts that it is not. We affirm the ed, however, photographs to that she had ment of the district court. mother had been prove complainant’s husband, I that com- appellant’s in bed with of nuts and plainant’s family were a bunch appellant’s which led to con- The events care. This tele- psychiatric were all under viction in the state courts occurred on the call for the phone was the basis harassment 1, in- evening September They prosecuted charge appellant for which was volve separate two but related incidents. 53a-183(a)(3) (Rev. under Conn.Gen.Stat. § The first incident occurred about 6:30 1958, Supp.1979). The complainant2 P.M. and a friend drove in a two count Appellant charged was parking into the lot of Hardee’s Restaurant 18, on March information and was convicted Connecticut, Newington, com- where disorderly conduct and harass- 1976 on the plainant Appellant, worked. who had been in the jury after a trial Court ment counts her following complainant, drove ear into New Britain. She was of Common Pleas at up parking pulled the same lot and abreast 15,1976 count to April on each sentenced on complainant’s complainant car. As imprison- car, consecutive three month terms of emerged appellant from her shouted the sentences of im- complainant from her car window that was ment. Execution of she or- “tramp”, prisonment suspended a was complainant’s mother was a was appellant’s year whore one terms gone and had to bed dered serve consecutive Tantalo, (D.Conn.1967). F.Supp. 1. The v. n.5 Connecticut stat- ute, 53a-183(a)(3) (Rev.1958, mystery why complaining wit § Conn.Gen.Stat. here is The Supp.1979), part provides: “complainant” in relevant and not to as ness is referred opinions, person guilty “A in the state court of harassment when otherwise identified (3) harass, annoy Gormley with intent is referred to in the whereas person, Appellate caption opinion alarm another call, he makes a Session of the ensues, (State “Anonymous” whether or not a conversation Superior of the Court likely annoyance a manner to cause Anonymous, Conn.Supp. 389 A.2d denied, alarm.” (Shea, J.), appeal (Super.Ct.1977) (1978)). 382 A.2d 1332 Since Conn. Every good course have an case of should complain have referred to the the state courts FDIC, mystery. element of 824, Mallis v. “complainant”, ing thoughout witness 1977), (2 827 n.4 cert. dismissed sub Cir. shall do likewise. Mallis, nom. Bankers Trust 435 U.S. 381 Co. (1978); Company Westchester Fire Insurance (1976), provisions the relevant supervision probation under statute here the Connecticut closely parallel Adult Probation. Department of United Third involved. The Circuit Appellate Ses- appealed Appellant (3 F.2d 783 Lampley, States September Superior Court. On sion of the attacks First 1978), rejected Amendment disorderly con- on the her conviction of the federal constitutionality new trial set aside and a duct count was its face. on telephone harassment statute ordered; her but conviction court Lampley emphasized count affirmed. had a enacting Congress 223 the § “[I]n March supra note 2. On v.Anonymous, protection of compelling interest in the denied Court 1978 the Connecticut fear, abuse or innocent individuals from Id. appellant’s petition certification.3 persons who at the annoyance hands for a thereupon petition filed Appellant telephone, not to communi- employed the corpus in habeas the District writ of cate, motives.” unjustifiable but for other well In a District of Connecticut. the omitted). (citations Id. at 787 19, 1979, dated opinion reasoned October “compelling in- parallel The between the habe- appellant’s denied Judge Blumenfeld Congress protect to in sought which terest” doing, accepted Magis- petition; as in so he equally the enacting the federal statute and findings fact as modified Eagan’s trate interest which the Connecticut compelling magistrate’s the recommenda- accepted and sought protect enacting to in the legislature be petition tion the denied. question succinctly stat- statute here Judge judgment the entered on From opinion Blumenfeld in his be- by Judge ed has been opinion, appeal Blumenfeld’s this low: taken. compel- equally interest is “Connecticut’s ling suppression and is unrelated to the II expression, by as evidenced the stat- prior pro- these light In the facts and approach ensuing conver- ute’s neutral to directly the chief issue ceedings, we turn to absence. And like the feder- sation or its namely, the on whether Con- appeal, this law, re- intent specific al Connecticut’s statute un- telephone harassment quirement ‘precludes proscription the ” is uncon- appellant der which convicted at 787. Id. mere communication.’ its face. We stitutionally overbroad on regu Clearly the Connecticut statute not. hold that it is is conduct, What speech. not mere lates call, telephone proscribed making enacted federal tele- is the of a Congress has the statute,4 speci- in the requisite the intent and phone harassment U.S.C. § call, telephone (B) May Pleas makes a whether or not 3. 1978 the Court of On Common ensues, serving disclosing her without his ordered that commence conversation abuse, Eagan annoy, probation. Magistrate identity on sentence of and with intent threaten, stay any person a June 1978 entered of this order at the called or harass February 7, aught number; he on For later lifted us, appellant appears in record the before (C) telephone makes or causes the of an- yet serving not commenced her sentence of has repeatedly continuously ring, other or probation. It is for this that we order reason any person with intent at the harass our mandate issue forthwith. number; called statute, calls, telephone (D) repeated during telephone The federal makes 223(1) (1976). pro- part ensues, solely in relevant § U.S.C. which conversation to ha- number; any person vides: rass called at the “Whoever— [punished].” (Emphasis shall added to be (1) in the District of Columbia or in inter- language parallel indicate to that Connecti- foreign by state or communication means of statute.) telephone cut telephone— (A) comment, any request, sugges- makes obscene, lewd, proposal tion or which is lascivious, indecent; filthy, or call must afoul of Appellate As Session of

fied manner. communicate, Superior Anony- Court stated but merely be made not mous, A.2d press terms tion face and where would fall most Connecticut statute is overbroad and effect of scurrilous no conversation at all most sublime In supra, sweeps considering appellant’s within “[A] epithet.” within its statute Conn.Supp. its ban recital on harassing the prayer Indeed, purview with the occurs. readily at be claim that violated commu listener inten- ex- n “with ensues. United alarm.” “in a manner warranted duct, pear irrelevant, ^[4] whether intent Harassing telephone calls are be on the increase. at 787. Whether since the statute invasion of or not a conversation likely to cause harass, annoy or alarm” and States v. speech privacy. actually occurs is Lampley, supra, They proscribes annoyance or They ap- are actually an un- prop- con which is the First statutes. protected erly nication outlawed federal and state Amendment, guided by must be speech on free possible chilling effect Supreme Court standard enunciated strikes us as of the Connecticut statute Oklahoma, in Broadrick 413 U.S. all-too-prevalent compared with the minor (1973): widespread misuse of the merely speech conduct and “[WJhere the statute will others. The risk that hurt involved, we the over- believe for, from, people prosecute them chill only of a must not be breadth The evil speech of free is remote. exercise well, real, judged but as in substantial is which the is directed both against statute plainly legitimate to the relation statute’s ugly. real and sweep.” tele We hold the that Connecticut of the Connect- The asserted overbreadth is not unconstitu phone harassment statute by the icut statute is circumscribed ele- tionally To overbroad on its face.5 proscribes. ments of the it run offense distinguish readily construe courts in the future to the The Connecticut statute Connecticut any telephone narrowly over- able from the harassment statutes to eliminate so as statute unconstitutionally held which were overbroad invitation. We decline the breadth. by appellant on as in cases relied such Walker colleague concurring would We note that our Dillard, denied, (4 Cir.), 523 v. F.2d 3 cert. 423 the the to caution Con- not decline invitation Webb, (1975), v. 446 U.S. and Radford statute narrow- courts to construe the necticut curiam, (W.D.N.C.1978), per F.Supp. 608 aff’d any ly Accord- overbreadth. so as to eliminate (4 1979). F.2d 1205 In both cases the Judge ingly, suggest Mansfield’s con- we that punished speech statutes alone. statute light curring opinion in the of any should be read in unlawful for involved Walker made it person anyone, following or use the observations. to “curse or abuse vul- language” profane, threatening gar, indecent or First, proper the federal function of it is not the Dillard, supra, telephone. over the Walker v. independently a state statute construe courts 523 F.2d at n. In Radford the statute out- overbreadth, any, if as to eliminate so telephone in lawed the use communications of Gooding only by v. state. done the can be “any lewd, profane, vulgar, language words or aof Wilson, (1972). the Su- What 405 U.S. 518 character, lascivious or indecent nature not should be preme has us connotation”, Webb, cautioned Court supra, or Radford directly surely be done not should F.Supp. done at hence “would reach com- and concurring colleague would argument implication, as our ments made in of heated the course expressions indignation just justified by way as of dictum. do easily as traditional the obscene Second, stat- the Connecticut in our view since phone call.” Id. at 610-11. overbroad, overbreadth “whatever is not ute several states are mindful courts of We that the through be cured may exist should said to] [be telephone harassment stat have struck down analysis case-by-case situations to the fact unconstitutionally Bolles v. utes as overbroad. may sanctions, assertedly, not be People, (1975); Peo 189 Colo. 541 P.2d 80 Oklahoma, supra, 413 applied." Broadrick v. Klick, ple N.E.2d 329 66 Ill.2d 615-16. U.S. at Dronso, (1977); 90 Wis.2d Third, having (1979). Accordingly, the Court have mind that we been N.W.2d down, the strik- never struck or sanctioned likewise unconstitutional the has invited to hold of, least, or, telephone ing stat- a state to caution the down Connecticut statute at Appellant basis of was convicted the III of a crime overwhelming evidence serious claims that the Appellant also Con years ago five committed more than —viola- unconstitutionally over- statute is telephone harass- tion the Connecticut disagree. her. We applied broad Her attack the consti- ment statute. respect is based on the Her claim this has tutionality that statute been careful- charge which focused the trial court’s state uniformly rejected the and ly considered content of the tele- jurors’ attention on the courts, by mag- a federal Connecticut state examination of the call. Our careful phone istrate, judge by a federal district and whole us that the trial charge as a satisfies mandate this Court. We order the jury court’s instruction that the was enti- issue forthwith. language to consider “the that was tled Affirmed. in the the call” used course of enabling the purpose jury was for the to MANSFIELD, (concur- Judge Circuit proven had determine whether the state the ring): required by essential element of intent ground the I concur on the limited As Third Circuit the statute. the stated Connecticut supra, v. Lampley, United States 53a-183(a)(3) (Rev. Conn.Gen.Stat.Ann. § 787, “Whether not the actual conver- narrowly Supp.1979), if construed harassing language may be sation contains apply the Connecticut question the of intent.” relevant only speechless calls or to obscene or case, type believe involved in threatening In the instant calls of case, jury upheld this be so construed. trial court’s instruction to to con- took no ex- Unfortunately since language by appellant used in the sider ception judge’s charge to the trial to the only course of the call op- jury, judge was never afforded it permissible; indispensable prop- portunity to so construe statutory whether the er determination of in terms of narrower jury instruct harass” requirement “intent to had been However, I construction. believe Con- proven. Supreme afforded should be We hold tele so opportunity that Connecticut to construe the statute phone harassment is not it will of First penalize statute unconstitu not exercise tionally applied appellant. speech rights.1 overbroad to If it were Amendment free

ute, admittedly pro- power within its we should in mind that the Court m to bear (citation omitted). hardly scribe.” 615 Broadrick could have admonished more 413 U.S. at against Fourth, emphatically adjudi- throughout facial overbreadth the concur- the references by (e. ring opinion “speechless g. a state cation of statute the federal “re- courts: to calls” speechless presented peated type calls adjudication is ex- an “[Fjacial overbreadth here”) appear This case to be misdirected. practice of rules ception our traditional speechless not does involve calls. function, one limited a short, carefully having Judge In considered unpro- outset, otherwise as the attenuates concurring opinion, Mansfield’s we adhere to the State it forbids behavior tected majority opinion respects. our in all ‘pure speech’ toward moves from sanction expres- and that conduct —even conduct 1. The Connecticut Court denied certi- scope val- otherwise of within the sive—falls Gormlev, opinion, fication without State v. 174 legitimate state laws that reflect id criminal 803, (1978). Conn. 382 A.2d 1332 This denial comprehensive maintaining con- interests nothing reflects on the Connecticut constitutionally harmful, unpro- trols over opinion Court’s of the merits of this case. “[A] laws, Although if too such conduct. tected necessarily of denial certification does not indi- worded, speech protected broadly may deter approval our cate either of the result reached extent, point comes a there unknown to some Appellate opinion Division or of the prediction a Chisholm, effect —at best where that rendered it.” State v. —can- 155 Conn. confidence, invalidating not, justify 706, 707, a 465, Accord, (1968). with 236 A.2d 466 prohibiting Doscher, 592, a and so face State v. statute 172 Conn. 376 A.2d 359 against enforcing (1977). conduct the statute from

944 mere is not limited to the bell. The statute construed, clearly the statute would

not so calls; were telephone making speechless be void for overbreadth. constitutionality would be case, its that the victim of being the person enjoys No Louisiana, See, 379 U.S. upheld. Cox v. type calls of repeated speechless 464, 453, 471 555, 13 L.Ed.2d 536, 85 S.Ct. legitimate The state has a presented here. Powers, F.Supp. Cf., 295 (1964). Palma against such persons in protecting interest (telephone service is (D.C.Ill.1969) privacy by others. invasion unwarranted Amend- the First protected by speech California, 15, 93 413 U.S. Miller v. See ob- prohibiting ment). Indeed a statute (1973); Rowan v. 37 L.Ed.2d S.Ct. calls, made scene, threatening, speechless 728, 90 397 U.S. Department, Post Office harass, pass probably would with intent (1970). On the 25 L.Ed.2d S.Ct. statute But if the muster. constitutional right of a hand, Amendment the First other be, construed, easily could as it here were with another tel- communicate person to “with in- call made telephone prohibit any if the call be considered ephone, even effect, it which had such annoy,” tent recipient, must also be “harassing” by the Amend- the First patently would violate respected. only be would not The overbreadth ment. to their calls irate citizens Telephone real, Broadrick Oklaho- but substantial. seeking pay- by collectors Congressmen, 2908, 2917, 37 601, 615, ma, 93 S.Ct. 413 U.S. overdue, by custom- legitimate bills ment of (1973). L.Ed.2d voicing to a seller dissatisfaction ers the authorities relied any Nor do and calls goods purchased, or services such view that majority support the by the tenor, annoying, even likely like are be is constitu- potentially a overbroad are harassing, recipients. to the Such calls face; most contrary, on the tional on its person called. to influence the usually made Al- contrary. cases are to decided the caller’s seriously question No one could Circuit, in United States though the Third the First Amend- right under speech 1978), (3d F.2d 783 Lampley, conversa- engage ment to such the federal upheld Yet, telephone calls by prohibiting tions. against so it did U.S.C. § annoy” and “in a made “with intent Noth- not overbreadth. vagueness, claim of annoyance,” the likely to cause manner majority’s supports the ing in the decision construed as could be Connecticut statute an overbreadth rejecting it as citation of speech. of this free the exercise prohibiting contrast, In made here. challenge, as is Thus, prohib- the statute also the fact that tel- down similar courts have struck several calls making its the mere as overbroad. harassment statutes ephone saves it speech hardly where no follows Klick, See, 66 Ill.2d People v. g., e. no from overbreadth. It is unconstitutional (1977) (Illi 858, 859, 362 N.E.2d Ill.Dec. telephoning his Con- comfort to the citizen person “A com providing that nois statute consumer gressman or to the defrauded knowingly: he disorderly conduct when mits to know that the stat- calling swindler another, annoy (2) with intent . to their tele- apply ute was not intended to call, whether or not a makes a plainly if its does so. phone language calls . ensues.”); v. thereby conversation prohibiting of a statute mere existence 149, Dronso, 279 N.W.2d 710 Wis.2d 90 exercise of a free obviously such lawful one (Wisconsin providing that (1979) effect, particu- speech right chilling has a “[wjith disorderly conduct guilty by the if enforcement is threatened larly another, makes a tele annoy intent to [he] recipient of a call. call, conversation whether or not a phone 189 prohibiting also, People, v. Labelling ensues.”). the statute as one Bolles See (Colorado stat 394, (1975) does not resolve this construc- 541 P.2d 80 “conduct” Colo. the “con- that one commits providing tional dilemma. In most cases ute harass, or alarm if, annoy “with intent is the oral communication punished duct” . . . communi- person, he: ringing another rather than the

945 otherwise, by tele- anonymously cates any other form of

phone, telegraph, mail or ROWLEY, by parents Amy her and natu- in a manner to harass likely communication guardians, Nancy ral Row- Clifford alarm.”). cause ley, Nancy Rowley, and Clifford and right, Plaintiffs-Appellees, their own abridge The state one’s First merely Amendment freedoms to avoid an- Cincinnati, 402 U.S. noyances. Coates OF OF The BOARD EDUCATION 1686, 611, (1971). 91 29 L.Ed.2d 214 S.Ct. HENDRICK HUDSON CENTRAL government, consonant ability “The DISTRICT, Westchester Coun- SCHOOL Constitution, with the to shut off dis ty, and the Commissioner of Education hear solely protect course others from York, words, of the State New Defendants- is, ing dependent upon it in other Appellants. privacy inter showing substantial are being essentially ests invaded an 1105, No. Docket 80-7098. intolerable manner.” Cohen v. Califor nia, 15, 21, 1780, 1786, 403 91 29 U.S. S.Ct. Appeals, United States Court (1971). L.Ed.2d 284 Second Circuit. Moreover, protects Amendment First 1, Argued May just more than communications. amiable See, Cincinnati, 414 City Norwell v. U.S. 17, July Decided 14, 187, (1973); 94 38 L.Ed.2d 170 S.Ct. Wilson, 518,

Gooding v. 405 U.S. 92 S.Ct.

1103, (1972); 31 L.Ed.2d Terminiello v. 894,

City Chicago, U.S. S.Ct. (1948);

L.Ed. 1131 v. New Chaplinsky

Hampshire, 315 U.S. S.Ct. (1942).

L.Ed. 1031 A carefully

statute should be tailored avoid vulnerability ground

constitutional on the it needlessly penalizes speech. here,

Applying principles these I am that, depending

forced conclude on how

it is construed the Connecticut

Court, (Rev. 53a-183(a)(3) Conn.Gen.Stat. §

1958, Supp.1979), might be constitutionally

vulnerable for overbreadth. Since are

precluded construing from this state stat-

ute, Wilson, at Gooding U.S. and a

S.Ct. narrow construction

the Connecticut Court would lead upheld being applied statute’s case,

the facts of this I concur in the result

reached majority. Should Con- Court, however, interpret encompass broadly constitu-

tionally protected speech, distin- obscene,

guished threatening from

speechless telephone calls made with intent recipient,

to harass I then would feel

compelled to declare the statute unconstitu-

tional its face.

Case Details

Case Name: Mary Gormley v. Director, Connecticut State Department of Probation and Attorney General of the State of Connecticut

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 1, 1980

Citation: 632 F.2d 938

Docket Number: 913, Docket 79-2241

Court Abbreviation: 2d Cir.