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Tichy v. Chief of Indianapolis Metropolitan Police Department

United States District Court, S.D. Indiana, Indianapolis Division

July 25, 2018

GINGER TICHY, Plaintiff,


          Tim A. Baker United States Magistrate Judge

         I. Introduction

         At issue is a motion to dismiss filed by Defendant Chief of Police Brian Roach of the Indianapolis Metropolitan Police Department. Plaintiff Ginger Tichy brings this action seeking declaratory and injunctive relief against enforcement of section 431-702 of the Indianapolis-Marion County Municipal Code, which is designed to prevent pedestrians from panhandling, or otherwise soliciting, from drivers at intersections. Roach moves for this Court to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, or, alternatively, based on abstention. However, the Court has subject matter jurisdiction and declines to exercise its discretion to dismiss Tichy's complaint. Therefore, the Court denies Defendant's motion to dismiss. [Filing No. 25.]

         II. Background

         Tichy is a homeless person who relies on panhandling for income. [Filing No. 26-1, at ECF p. 124, ¶ 1.] In May 2017, the Marion Superior Court in Indianapolis, Indiana, held Tichy liable for violating section 431-702 of the Indianapolis-Marion County Municipal Code and issued a permanent injunction ordering her compliance with the ordinance. [Id. at ¶ 3.] Section 431-702 states:

It shall be unlawful for a pedestrian to sit, stand or move within or upon a roadway, or a median between two (2) roadways, or within the public right-of-way not exceeding fifty (50) feet from the traveled portion of any intersection controlled by an automatic traffic signal or stop sign, for the purpose of or while engaged in (by oral or written methods): (1) Soliciting, or peddling, selling, advertising, donating, or distributing any product, property, or service, including but not limited to tickets, handbills, newspapers, or other printed material, to or from an occupant of a vehicle in the roadway; or, (2) Conversation or discourse with an occupant of a vehicle in the roadway.

Indianapolis - Marion County, Indiana Code of Ordinances § 431-702. Just six days after the Marion Superior Court issued the permanent injunction, the City asked that court to hold Tichy in contempt, which it did, for continuing to panhandle in violation of the injunction and the ordinance. [Filing No. 26-1, at ECF p. 124, ¶ 4.]

         In October 2017, instead of arguing the merits of the contempt charge, Tichy requested relief from the judgment under Indiana Rule of Civil Procedure 60(B). [Filing No. 26-1.] She alleged that the permanent injunction violated her right to free expression, the Indiana Constitution, the Indiana Home Rule Act, and principles of “Due Process and fundamental fairness.” [Filing No. 26-1, at ECF p. 128-29, ¶¶ 24-26, 29, 31.] In November 2017, while the state proceedings continued, Tichy filed this federal lawsuit. [Filing No. 1.] Her arguments are notably similar, but Tichy does not challenge the propriety of any state court ruling directly. Rather, she asks this Court to declare the ordinance unconstitutional and issue a prospective injunction against future enforcement. [Id. at ECF p. 6-7, ¶¶ 2-3.]

         In January 2018, the Marion Superior Court held a hearing regarding Tichy's Rule 60(B) motion. The court determined that the ordinance is “without legal effect” because it violates principles of preemption found in the Indiana Constitution, and the Indiana Home Rule Act. [Filing No. 26-9, at ECF p. 18.] The state court issued an oral ruling because it wanted to avoid any further delays but added that a written ruling would follow. [Id. at ECF p. 20.] The court noted that “the gist of [the written ruling] will be that . . . [the ordinance] is in violation, again of Article 4, sections 22 and 23, and . . . the Home Rule statute.” [Id.] Nonetheless, Roach continued to enforce the ordinance even after the January hearing.[1]

         III. Discussion

         Roach argues this Court lacks subject matter jurisdiction to hear Tichy's case, relying on the Rooker-Feldman doctrine. In the alternative, Roach contends that the Court should exercise its discretion and dismiss Tichy's claims under Wilton-Brillhart abstention doctrine. Tichy counters that her federal claim does not trigger Rooker-Feldman and that invoking the abstention doctrine would require overturning Supreme Court precedent, which is outside the authority of this Court. As discussed below, Roach fails to persuade the Court that dismissal is appropriate under either Rooker-Feldman or Wilton-Brillhart.

         A. The Court Has Subject Matter Jurisdiction

         Roach argues this Court lacks subject matter jurisdiction because it has only original jurisdiction and cannot act as judicial review of a state court proceeding. While it is correct that the Court does not have jurisdiction to review state court proceedings, Roach's argument misses the mark. He further argues this lawsuit is inextricably intertwined with state court proceedings and that the federal and state court litigation present the same issues. However, Roach interprets Rooker-Feldman more broadly than both the Supreme Court and the Seventh Circuit.

         The Rooker-Feldman doctrine represents a limitation on the subject matter jurisdiction of lower federal courts. Arnold v. KJD Real Estate, LLC,752 F.3d 700, 704 (7th Cir. 2014). This limitation is based on the principle that “Congress empowered only the Supreme Court to exercise appellate authority to reverse and modify state court judgments.” Id. However, the doctrine is “narrowly confined” to only those cases where the federal plaintiff is attacking the state court judgment itself. Id.In other words, the essence of Rooker-Feldman is that the lower federal courts cannot offer judicial review of state court judgments. Zurich Am. Ins. Co. v. Superior Court for Cal., 326 F.3d 816, 823 (7th Cir. 2003). But Rooker-Feldman does not prevent federal plaintiffs from challenging the “statute or rule governing the [state court] decision.” Skinner v. Switzer,562 U.S. 521, 532 (2011). In Skinne ...

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