Petition — City of Columbus v. Robert Leonard
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Supreme Court, U. 8.
FILED
JAN @0 1978
WICHAEL RODAK, M. CLERK
Supreme Court of the United States
OCTOBER TERM, 1977
No 77-1082
CITY OF COLUMBUS, et al.,
Petitioners,
ROBERT LEONARD, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Eugene Hardwick Polleys, Jr.
Associate City Attorney
FV. O. Box 1340
Government Center
Columbus, Georgia 31902
Attorney for Petitioners
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SCOFIELDS QUALITY PRINTERS, F O 8OX 69006. N % LA 70189 80% O22 1811
TABLE OF CONTENTS
Page
OPINIONS BELOW ů c cic ccc cece eeeeeeeeeeuues 1
GUGUMEPOENEE co ccccccccrccccccccecccccccccceccns 2
QUESTIONS PRESENTED FOR REVIEW ........ 2
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED 0... 666 1
STATEMENT OF THE CAS 5
REASONS FOR THE ALLOWANCE OF THE
..... 0006666666666 666666 0
A. The Court of Appeals has decided
federal questions in a way in conflict
with applicable decisions of the
Supreme Court and these are impor-
tant questions of federal law which
should be settled by the Supreme
GOURG . .. „ 06 6 6 6 6 6 6 6 06 6 66 666 664 4 8
B. The Court of Appeals has rendered a
decision in conflict with the decisions
of other courts of appeal on the same
.. .... „ 0666 66666 666 66 66 6 6 13
C. The Court of Appeals has so far
departed from the accepted and usual
course of judicial proceedings that it
calls for supervision by the Supreme
GOUTE . 6 66666666 6 6 6 646 60 19
SG . . . . 6 66666666 6 66 22
CERTIFICATE OF SERVICE... hh 23
APPENDIX A Judgments, Opinions la
APPENDIX B — Amendments, Statutes and
COMO wcccccecccccceesceecescececeoanesese 34a
il
TABLE OF AUTHORITIES
107 ͥůꝶů „„ 18
Alabama Public Service Commission v.
Southern Railway Company, 341 U.S, 341
(10õu „„ 10
American Civil Liberties Union v. Bozardt,
690 F.2d 340 (4th Cir, 1976) ))))) cece ee nneens 14
Angel v. Bullington, 330 U.S, 183, 189 (1947) ...... 9
Anonymous v. Association of the Bar, 515
F. d 427 (2d Cir, 17%: eee eeneenens 14
Ball v. Police Committee of the City of Atlan-
ta, 196 Ga. App. 144, 220 8. .d 479 (1%) 7
Bishop v. Wood, 96 . Ot. 2074, 2080 (1976) ........ 13
Boehning v. Indiana State Employees Assoc.,
Inc., 96 G. Ct. 168 (1975) /r18“C 1!!! 9-10
Borland v. Johnson, 88 F.2d 376 (9th Cir, 1997) ... 1
, Oil Company, 319 U.S, 315
— eee 232 2226666666666 66 3,10,16,20
Community Action Group v. City of Colum-
bus, 473 F.2d 966 (Sth Cir, 1973), roh. den,, 475
%% 6 „ 4466664444444 4 4 4 4 5
Dorsey v. NAACP, 408 F. ad 1022 (Sth Cir, 1969) ..... 20
Duke v. State of Texas, 477 F.2d 244 (1973), oi
bort, den., 415 U. 8. %% ò_rmnmnnĩð nee nnnnns
Fisher v. Time, Inc., 153 F.2d 806 (7th Cir, 1946) 15
111
TABLE OF AUTHORITIES (Continued)
Page
Geiger v. Jenkins, 401 U.S, 085 (197) 11
Gibson v. Berryhill, 411 U.S. 64, 577, 93 S.Ct.
1689, 30 L. Ed. d 488 (1% %ců ccccuns 11,12
Gibson v. New Jersey Supreme Court, 558
FRE FOL (6 Cle, ee 14
Gonzalez v. Gonzalez, 536 F.2d 453 (ist Cir.
/ 15
Gregg v. Winchester, 173 F.2d 512 (om Cir,
Harris County Commissioners v. Moore, 420
R eee 9
Hicks v. Miranda, 422 U.S. 332 (17% 11
Huffman v. Pursue, Ltd,, 420 U.S. 592 (1975) ... 11,12
Juidice v. Vail, 97 8. Ot. 1211 (1977) .............., 11
Kelly Services, Ino, v. Johnson, 642 F.2d 31
reer 660 0
Lewellyn v. Gerhardt, 513 F.2d 184 (7th Cir.
McClung v. Richardson, 232 Ga. 530, 207
Z e 7
McCune v. Frank, 521 F. d 115 (d, Or. 176) 13
McDowell v. Texas, 465 F.2d 1342 (Sth Cir.
1972), cert, den., 410 U.S. 943 m 21
Moore v. State Highway Department of
Georgia, 467 F.2d 944 DE BUeeebeaéecccecevess 21
Moreno v. Henckel, 431 F.2d 1299 (Sth Cir,
r ¢dhaceacen dete 7,20
iv
TABLE OF AUTHORITIES (Continued)
Page
Railroad Commission of Texas v. Pullman
Company, 312 U.. 406 (190% / /%ůỹõch !! cece 3.9.20
Reese v. Louisville Trust Co,, 58 F.2d 638 (6th
Ole, 1 /cðhʒ: : 6 6 6 6 6 6 6 6 6 4 4 6 14
Rooker v. Fidelity Trust Company, 263 U.S.
GIB ( . . . . 66 66 6 6 6 6 6 66 66 6 2.3.8.9.14
Samuels v. Mackell, 401 U.S. 66 (1971) ͤ ͤ hh 10
Shelton v. Smith, 547 F.2d 768 (2d Cir, 1976) ..... 15
Simmons v. Jones, 478 F. d ge (Sth Cir, 1973) ..... 21
Sitton v. United States, 413 F.2d 1386 (Sth Cir.
1 21
Spence v. Latting, 512 F.2d 93 (10th Cir, 1975),
cert. den,, 96 8. Ct. 198 (197 ũ/%ůi11ñ:: cnn 18
Sumbry v. Land, 127 Ga. App. 786, 195 8. KF. 2d
228 (1972), cert. den,, 414 U.S, 107 %ſůé1i 5
Trainor v. Hernandez, 97 8. Ct. 1911 (1977) ........ 12
Williams v. Rubiera, 539 F.2d 479 (5th Cir,
SUED ccccconeeds . Terr ry ee 21
Wood ev. Strickland, 420 U.S. 308, 326 (1975) ...... 12
Younger v. Harris, 401 U.S. 37 (1971) ... 3,10,12,14,20
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1977
No.
CITY OF COLUMBUS, et al.,
Petitioners,
versus
ROBERT LEONARD, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioners pray for the issuance of a writ of cer-
tiorari to review the decision of the United States
Court of Appeals, Fifth Circuit, entered on October 26,
1977 after rehearing en banc in the case styled Robert
Leonard, et al., Plaintiffs-Appellants, v. City of
Columbus, et al., Defendants-Appellees, No. 75-2344,
on appeal from the United States District Court for the
Middle District of Georgia, Columbus Division, Civil
Action No. 1514.
OPINIONS BELOW
The decision of the Court of Appeals on rehearing en
banc is reported at 561 F.2d 1213. The panel opinion
which this en banc decision adheres to as published is
reported at 551 F.2d 974. The opinion of the District
Court is not reported. Copies of all these opinions are
appended to this petition in Appendix “A”, as is also
the October 26, 1977 judgment of the Court of Appeals.
A specially concurring opinion dated January 4, 1978,
is also attached in Appendix A and it contains sound
reasons for allowing the writ.
JURISDICTION
The statutory provision believed to confer on the
Supreme Court jurisdiction to review the judgment or
decree of the Court of Appeals by writ of certiorari is
28 U.S.C. §1254(1) (62 Stat.928).
QUESTIONS PRESENTED FOR REVIEW
At least five basic jurisdictional and abstention
questions arise out of this factual situation in which
plaintiffs seek reinstatement in the Columbus,
Georgia Police Department by way of a Civil Rights
action filed during the same period of time in which
they also deliberately sought and failed to obtain rein-
statement in hearings before the Columbus Police
Hearing Board, a quasi-judicial administrative
tribunal whose decisions are directly reviewable by
certiorari to the Superior Court of Muscogee County
in a constitutional and statutory procedure which in-
cludes provisions for the correction of errors and for
trial by jury:
1.
Is the Rooker doctrine that federal district courts are
courts of original jurisdiction applicable in the case at
bar where the thrust of the complaint is to create a
3
federal appellate review procedure after an adverse
decision by a quasi-judicial state administrative hear-
ing which was deliberately invoked by the federal
plai tiffs prior to the time that they filed their federal
complaint? (Rooker v. Fidelity Trust Company, 263
U.S. 413, 416 (1923) ) Yes.
2.
Is a Pullman-type abstention appropriate in the case
at bar where a construction of a local ordinance by
state tribunals which might have been favorable to the
plaintiffs would have eliminated the need for a federal
constitutional ruling? (Railroad Commission of Tex-
as v. Pullman Company, 312 U.S. 496 (1941) ) Yes.
3.
Is a Burford-type abstention appropriate in the case
at bar where the requested relief would have disrupted
state quasi-judicial administrative processes? (Bur-
ford v. Sun Oil Company, 319 U.S. 315 (1943) ) Yes.
4.
Is the Younger doctrine of equitable restraint ap-
propriate in the case at bar where the federal plaintiffs
requested a sort of “backhanded equity” of ordering
the defendants not to refrain from reinstating plain-
tiffs? (Younger v. Harris, 401 U.S. 37 (1971) ) Yes.
5.
Should this Court accept the District Court's invita-
tion in the interest of “Our Federalism” to require
some sort of exhaustion of state remedies under the
4
Civil Rights Act at least to the extent of requiring
those who invoke to also exhaust? Yes.
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The case involves the following constitutional
provisions and statutes, all of which are set out ver-
batim in Appendix B..
First Amendment to the United States Con-
stitution
Fifth Amendment to the United States Con-
stitution
Fourteenth Amendment to the United States
Constitution
42 U.S.C. §1981 (R.S. §1977)
42 U.S.C. §1983 (R.S. §1979)
28 U.S.C. §1331 (62 Stat. 930; 72 Stat. 415)
1976 Amended version of 28 U.S.C. §1331 (90
Stat. 2721)
28 U.S.C. §1343 (62 Stat. 932; 68 Stat. 1241; 71
Stat. 637)
28 U.S.C. §2201 (62 Stat. 964; 63 Stat. 105; 68
Stat. 890; 72 Stat. 349)
1976 Amended version of 28 U.S.C. §2201 (90
Stat. 1719)
28 U.S.C. §2202 (62 Stat. 964)
Constitution of Georgia of 1945, Article VI
(Judiciary), Section IV (Jurisdiction of
5
Superior Courts), Paragraph V (Certiorari,
Mandamus, etc.) (Ga. Code Ann. 2-3905):
This same provision is contained in the 1976
Georgia Constitution in Art. VI, Sec. IV,
Paragraph V codified as Ga. Code Ann. 2-
3305
Ga. Code Ann. 19-101 (Code of Georgia of 1933)
Ga. Code Ann. 19-203 (1850 Ga. L., Cobb, 529;
1878-9 Ga. L. 155)
Ga. Code Ann. 19-401 (1961 Ga. L. 190, 192)
Ga. Code Ann. 19-402 (1961 Ga. L. 190, 192)
Ordinance No. 71-7 of the Columbus Code
Ordinance No. 71-154 of the Columbus Code
STATEMENT OF THE CASE
Both the opinions of the District Court and the Court
of Appeals contain accurate statements of the case. We
highlight the matters relevant to this petition.
3.
This case arises from certain events during the
“Summer of 1971” in Columbus, Georgia, which
produced litigation appearing in Community Action
Group v. City of Columbus, 473 F. 2d 966 (5th Cir. 1973),
reh. den., 475 F.2d 1404 and Sumbry v. Land, 127 Ga.
App. 786, 195 S.E.2d 228 (1972), cert. den., 414 U.S. 1079,
both cases of which ended favorably to the City or to
local officials.
Seven black police officers were discharged from
the Columbus Police Department on May 31, 1971 as a
result of their deliberately cutting off American flag
insignia from their officiai uniforms during a picket-
ing demonstration in front of Police Headquarters in
full view of television and other news media and with
the stated intention of not wearing the insignia in the
future.
3.
The seven officers were and still are represented by
attorneys from the American Civil Liberties Union
and the following events set the stage for the present
petition:
(a) June 4, 1971: Counsel for the discharged
policemen write the City and state that they wish to
preserve their rights to a hearing before the Police
Hearing Board.
(b) June 10, 1971: Deputy Chief of Police replies
that hearings will be held in the near future.
(c) June 18, 1971: The present suit is filed and is
served on the Mayor of Columbus on June 24.
(d) June 24, 25,1971: Plaintiffs receive letters ad-
vising hearings are scheduled for June 28 on the “flag”’
charge and various other charges: feigning sickness,
unlawful picket, etc.
7
(e) July 9, 15, 22,1971: All discharges are upheld
by the Police Hearing Board after a delay was re-
quested by Leonard’s counsel on June 28; no state
court review is sought.
() December, 1974: Plaintiffs request trial in U.S.
District Court.
(g) February, 1975: Trial is held.
(h) April 17, 1975: District Court renders judg-
ment against plaintiffs on jurisdictional and absten-
tion grounds citing points of law reflected in the five
basic questions previously stated.
(i) May 9, 1977: Court of Appeals, relying solely
on Moreno v. Henckel, 431 F.2d 1299 (Sth Cir. 1970), re-
verses District Court with instructions to decide case
on its merits; decision adhered to October 26, 1977 after
September 28 rehearing en banc.
4.
In recognizing the availability of state court review
of the Board’s decision, the District Court cited
McClung v. Richardson, 232 Ga. 530, 207 S.E.2d 472
(1974) and the Court of Appeals cited Ball v. Police
Committee of the City of Atlanta, 136 Ga. App. 144, 220
S.E.2d 479 (1975).
5.
The permanent members of the Board are named
defendants in the federal suit which has the stated pur-
8
pose of disrupting the Board proceedings either by
commanding a course of action or by setting aside an
established decision — but the complaint does not al-
lege any constitutional or procedural infirmities in
the Board itself.
The complaint alleges unlawful discharge because
of procedural defects under city ordinances and
because of federal constitutional violations,
REASONS FOR THE ALLOWANCE
OF THE WRIT
A. The Court of Appeals has decided federal
questions in a way in conflict with
applicable decisions of the Supreme
Court and these are important questions
of federal law which should be settled by
the Supreme Court.
1.
The Court of Appeals should have decided the case
at bar in the same manner as the District Court decided
the case on the authority of any or all of the leading
Supreme Court decisions cited in the “Questions
Presented for Review.”
The Court of Appeals not only failed to apply the
Rooker requirement that district courts exercise only
original jurisdiction, but it also failed to recognize the
applicability of Angel v. Bullington, 330 U.S, 183, 189
(1947): “If a litigant chooses not to continue to assert
his rights after an intermediate tribunal has decided
against him, he has concluded his litigation as effec-
tively as though he had proceeded through the highest
tribunal available to him.“ We see no reason not to
apply Rooker and Angel simply because the present
matter did not go beyond the lowest state tribunal, par-
ticularly since we can easily visualize a situation in
which either Leonard or the City appealed an adverse
Board decision to the Georgia judicial system and
thus placed the federal District Court in the position of
being an appellate tribunal over the Muscogee
Superior Court, the Georgia Court of Appeals, the
Georgia Supreme Court, or even the United States
Supreme Court,
3.
The plaintiffs claim that a reading of the two Colum.
bus ordinances attached to this petition requires a
conclusion that their summary dismissal by the
Police Chief and Safety Director was erroneous and
entitles them to reinstatement. We see no difference in
this situation and the Pullman situation where the
statutory authority of the Texas Railroad Commis-
sion was considered a question for Texas courts and
where a finding of no authority” eliminates the con-
stitutional issue. Harris County Commissioners
Court v. Moore, 420 U.S. 77 (1975) also presents a
similar situation: abstention is said to be regularly or-
dered when state law questions underly a federal
claim and concern matters peculiarly within the
province of local courts. Boehning v. Indiana State
10
Employees Assoc., Inc,, 96 8. Ct. 168 (1975) applies
Pullman in an employment dismissal case,
4.
In naming the three permanent Board members as
defendants and in asking the District Court to enjoin
all defendants “from refraining to reinstate said plain-
tiffs and from withholding backpay from May 31,
1971“ and in finally pursuing the matter so as to
attempt to overrule a long-standing decision of the
Board, the plaintiffs run head-on into the Burford
abstention doctrine requiring dismissal of federal
complaints that disrupt state administrative proceed-
ings. Both Burford and the subsequent similar absten-
tion case of Alabama Public Service Commission v.
Southern Railway Company, 341 U.S, 341 (1951)
emphasize the availability of judicial review — as was
found by the District Court to exist in the Georgia
courts in the case at bar — as a factor in abstaining.
“As adequate state court review of an administrative
order based upon predominantly local factors is
available to appellee, intervention of a federal court is
not necessary for the protection of federal rights.” 341
U.S, 341, 349,
The equitable and declaratory nature of the re-
quested relief call for the application of Younger's
equitable restraint and the companion doctrine for
declaratory judgments found in Samuels v. Mackell,
401 U. 8. 66 (1971). As indicated in the preceding para-
graph, the interference with state proceedings is ob-
vious regardless of whether it is viewed prospec-
11
tively or retrospectively — but the exact time se-
quence of the federal and state proceedings should
make no difference in applying equitable restraint in
light of Hicks v. Miranda, 422 U. 8. 332 (1975) which
held Younger applicable where state criminal
proceedings begin after the filing of the federal com-
plaint but before any proceedings of substance on the
merits take place in federal court.
The applicability of Younger to civil proceedings is
now well established, Huffman v. Pursue, Ltd., 420 U.S.
592 (1975). Juidice v. Vail, 97 S.Ct, 1211 (1977) applies
Younger to state contempt proceedings, and, although
the panel decision below attempted to distinguish
Juidice, we submit that the entire thrust of Juidice
prohibits interference with and requires respect for
state proceedings. “Appellees need to be accorded
only an opportunity to fairly pursue their constitu.
tional claims in the ongoing state proceedings, Gib-
son v. Berryhill, 411 U.S, 64, 577, 93 S.Ct. 1689, 1697, 36
L.Ed, 2d 488 (1973) and their failure to avail them-
selves of such opportunities does not mean that the
state procedures were inadequate," 97 8. Ct. 1211, 1218.
The citation of Gibson is appropriate because the case
at bar does not involve the problem of a biased
administrative board which was present in Gibson,
and the opinion in Gibson in discussing Geiger v.
Jenkins, 401 U.S. 985 (1971) suggests that adminis.
trative proceedings... may in proper circumstances
command the respect due court proceedings.” 411 U.S.
564, 576, 577,
12
7.
Trainor v. Hernandez, 97 8. Ct. 1911 (1977), decided
three weeks after the pane) decision, applied Younger
to attachment proceedings brought by the Illinois
Department of Public Aid to recover public as-
sistance money alleged to have been wrongfully re-
ceived. We are asking the Court today to apply
Younger to a quasi-judicial administrative proceed-
ing. Trainor's application of Younger to a writ of at-
tachment issued automatically by the clerk of the
court upon receipt of an affidavit and executed by the
sheriff (97 S.Ct, 1911, 1914) — which is auxiliary to the
underlying civil complaint (97 S.Ct, 1911, 1915) —
together with the Gibson observation quoted in the
preceding paragraph clearly suggests that Younger
not be limited to pure judicial proceedings, If it is so
limited the “eviscerating impact on many state en-
forcement actions is readily apparent“ 978,Ct, 1911,
1919. Footnote 9 rejects the argument that the attach-
ment proceeding is not a court proceeding within the
doctrine of Younger and Huffman. 978,Ct, 1911, 1919,
The availability of certiorari to the Muscogee
Superior Court and the general nature of the Police
Board hearing should certainly put the present plain-
tiffs in court” to the same extent as the plaintiffs in
Trainor whose federal suit only interferred with the
attachment phase of the state case.
The District Court extends an invitation to adopt a
rule that They who invoke must also exhaust,” Wood
v. Strickland, 420 U.S, 308, 326 (1975) suggests such a
rule: “But §1983 does not extend the right to relitigate
13
in federal court evidentiary questions arising in
school disciplinary proceedings or the proper con-
struction of school regulations.’ Bishop v. Wood, 96
§.Ct. 2074, 2080 (1976) also suggests the rule: “The
federal court is not the appropriate forum in which to
review the multitude of personnel decisions that are
made daily by public agencies."
B. The Court of Appeals has rendered a deci-
sion in conflict with the decisions of other
courts of appeal on the same matter.
1,
The case at bar is in direct conflict with MeCune v.
Frank, 521 F.2d 1152, 1158 (2d Cir, 1975);
“That we are dealing with a county police
department's disciplinary proceeding rather
than a state court action is of little moment. A
proceeding in a state court is not a pro-
requisite to the applicability of Younger.
Schlesinger v. Councilman, supra; Geiger v.
Jenkins, 401 U. 8. 985, 91 S.Ct, 1236, 28 L. Hd.
525 (1971), aff'g mom., 316 F.Supp. 370
(N.D.Ga,1970), Geiger establishes that
Younger has relevance to administrative pro-
ceedings, see Anonymous v. Association of
the Bar, supra, 515 F. d 427, at 432 n. 3, and the
explanation of Geiger in Gibson v. Berryhill,
411 U.S. 564, 576-77, 93 8. Ct. 1689, 36 L.Bd.2d 488
(1973), indicates that this applicability is sub-
ject to considerations similar to those subse-
quently enunciated in Huffman, supra and
Anonymous v. Association of the Bar, supra."
14
There are two companion Anonymous bar cases at 515
F. d 427 and 515 F.2d 435 (2d Cir, 1975) establishing the
applicability of Younger to administrative proceed-
ings, and certiorari was denied in both, 96 8. Ct. 71 and
96 S.Ct. 122 (1975).
The case at bar is in direct conflict with American
Civil Liberties Union v. Bozgardt, 539 F. 2d 340 (4th Cir.
1976) applying Younger to state bar disciplinary
proceedings which are heard by the Board of Commis-
sioners on Grievances and Discipline of the South
Carolina Bar and which are reviewable by the South
Carolina Supreme Court, As in the present case, the
ACLU sought to block the board proceedings before or
without even knowing that any action would be taken
by the Supreme Court.
3.
The case at bar is in direct conflict with Gibson v.
New Jersey Supreme Court, 558 F. ad 701 (3d Cir, 1977)
which applies Younger to state atiorney disciplinary
proceedings, and the opinion would not appear to limit
this applicability merely to matters which are pend-
ing in the courts even though the proceedings were
pending in the New Jersey Supreme Court at the time
of the federal suit.
4.
We submit the following applications of Rooker to
illustrate the conflict among the circuits created by
the Court of Appeals decision:
(a) Reese v. Louisville Trust Co,, 58 F. ad 638
(6th Cir, 1932): “Judicial determination of
an issue by state courts cannot be con-
(b)
(c)
The following applications of Pullman illustrate the
conflict:
(a)
(b)
15
sidered ‘state action’ depriving party of
property without due process of law, in
contravention of Fourteenth Amendment
for purpose of giving federal courts juris-
diction to review action of state courts
(Const. U. S. Amend. 14).“
Fisher v. Time, Inc., 153 F.2d 806 (1) (7th
Cir. 1946): The circuit court of Cook
County and District Court of the United
States for the Northern District of II-
linois, Eastern Division, are courts of
concurrent jurisdiction.”
Borland v. Johnson, 88 F.2d 376 (9th Cir.
1937): Federal District Court held
without jurisdiction of suit for relief
against conviction in state justice court
for violation of alleged unconstitutional
state Medical Practice Act, where ques-
tion as to constitutionality of act andcon-
tention that shortening of time for appeal
from conviction was unjust could have
been presented in state courts”.
5.
Gonzalez v. Gonzalez, 536 F.2d 453 (ist
Cir. 1976): Federal court should abstain in
civil rights action for wrongful termina-
tion of employment in view of question as
to whether Puerto Rican statute authoriz-
ed action of personnel director.
Shelton v. Smith, 547 F.2d 768, 770 (2d Cir.
1976): “Since § 383(2) is susceptible to an
(o)
The following applications of Burford illustrate the
conflict:
16
interpretation that a hearing is required
before parental visiting rights may be
terminated, and since such an inter-
pretation would obviate the need for the
federal court to consider appellant’s
federal constitutional claims, abstention
was appropriate in this case.”
Lewellyn v. Gerhardt, 513 F.2d 184, 187
(7th Cir. 1975): An action seeking
recovery of land and attacking the trans-
fer of the land on due process and equal
protection grounds: “The case before us
appears to be a classic Pullman-type
abstention case because there is
presented in addition to the alleged
federal claim an unsettled issue of state
law which is capable of superseding
altogether the federal question.?“
2. Compare Murdock v. City of
Memphis, 87 U.S. 590, 22 L.Ed. 429
(1875), an early Supreme Court decision
which involved facts amazingly
similar to our case. It was held that
there was an adequate independent
state remedy. The Court treated this
issue as preemptive. Cf. Miller's Ex-
ecutor v. Swann, 150 U.S. 132. 14S.Ct. 52,
37 L.Ed. 1028 (1893).”
6.
17
(a) Kelly Services, Inc. v. Johnson, 542 F.2d
31 (7th Cir. 1976):
(1) District court erred in not
abstaining from deciding whether
employment agencies in nature of tem-
porary help companies’ were subject to
regulatory provisions of Illinois
Private Employment Agencies Act.”
“(2) Even if diversity jurisdiction is
proper, abstention is appropriate when
to abstain would clearly serve impor-
tant countervailing interests or where
there would be needless friction by
unnecessarily enjoining state officials
from executing state policies.”
(b) Gregg v. Winchester, 173 F. 2d 512 (9th Cir.
1949): after quoting Burford at page 515,
the Gregg opinion concludes:
“So it is with the zoning regulations
of the City of Los Angeles. The city, un-
der delegated state authority, has
enacted an elaborate zoning system. Of
course, every portion of this system is
subject to attack in the state courts
wherein its constitutionality under
both state and federal constitutions can
be tested. Where the attack has been
made in a state court, conflict and con-
fusion is avoided and all parties are ful-
ly assured of due judicial process by
following through the state’s trial and
appellate courts and thence to the Unit-
ed States Supreme Court on all federal
questions.“
The following cases involving general principles of
18
7.
comity and federalism illustrate the conflict:
(a) Ahrensfeld v. Stephens, 528 F.2d 193 (7th
(b)
Cir. 1975): Abstention and dismissal of
federal attack on Illinois eminent domain
proceeding is in order because matters
were of local concern, federal constitu-
tional questions could be raised in state
courts, and state statute remained
susceptible to interpretation.
Spence v. Latting, 512 F.2d 93, 98 (10th Cir.
1975), cert. den. 96 S.Ct. 198 (1975):
“In this action, Spence sues the same
City officials or their successors on the
same facts changing only his theory
and remedy. Thus, in state court, he
sought an order requiring a § 541 hear-
ing; in federal court, reinstatement and
money damages for failure to accord a
due process hearing. Nonetheless, he
alleges the same facts in all of these ac-
tions, and we think that the core of his
cause of action remains the same — dis-
missal from employment without a due
process hearing. In pursuit of this
cause of action, he was perfectly free to
plead and litigate his federal constitu-
tional claims in any and all of the state
court actions. Federal courts are not the
exclusive forum for the redress of
federal rights.5 ‘Upon the State courts,
equally with the courts of the Union,
rests the obligation to guard, enforce,
19
and protect every right granted or
secured by the constitution of the Unit-
ed States and the laws made in pur-
suance thereof, whenever those rights
are involved in any suit or proceeding
before them. Robb v. Connolly, 111
U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542
(1884). See also Brown v. DeLayo, 498
F.2d 1173 (10th Cir. 1974). Only the
Supreme Court is the final judge of the
definition and effectuation of those
rights. Indeed, Spence did assert
federal constitutional claims in two of
his original state court actions; but
deliberately and voluntarily aban-
doned these claims for reasons not ap-
parent on the record.”
“5. Under 28 U.S.C. § 1343, federal
courts have original jurisdiction over
§1983 actions; but this jurisdiction is
not exclusive. See Grubb v. Public
Utilities Commission of Ohio, 281 U.S.
470, 50 S.Ct. 374, 74 L.Ed. 972 (1930);
Long v. District of Columbia, 152
U.S.App. D.C. 187, 469 F.2d 927, 937
(1972).“
C. The Court of Appeals has so far departed
from the accepted and usual course of
judicial proceedings that it calls for
supervision by the Supreme Court.
20
1.
The concurring opinion of three judges expresses
doubts about the decision itself and its reliance on
Moreno v. Henckel, 431 F.2d 1299 (5th Cir. 1970). The
City unsuccessfully pointed to distinctions between
the present case and Moreno and suggested that it was
not applicable or that if found applicable it should be
overruled. Plaintiff Moreno had nc established review
procedure but would have had to bring an original
lawsuit in the Texas courts to review his dismissal by
City Manager Henckel who ignored an adminis-
trative board advisory recommendation for rein-
statement after initial dismissal by other super-
visors. There were no underlying state issues and no
board hearings to disrupt, so neither Pullman nor Bur-
ford applied. All issues were federal in nature, so a
federal forum was considered appropriate. Younger
had not been decided, and some of the broad “no ex-
haustion” language in Moreno is questionable in light
of Younger and its successors.
2.
Supervision of the Court of Appeals in order to
eliminate conflict within its own circuit is called for
when consideration is made of the following cases:
(a) Dorsey v. NAACP, 408 F.2d 1022 (5th Cir.
1969), which dismissed the federal claim
of a plaintiff who had received an
administrative hearing which was sub-
ject to a judicial review and which con-
cluded that the right to reinstatement was
derived from state law.
(b)
(c)
(d)
(e)
(f)
(g)
21
Sitton v. United States, 413 F. 2d 1386, 1389
(5th Cir. 1969), which stated that district
courts have only original jurisdiction
and are not appellate arms of state courts.
McDowell v. Texas, 465 F.2d 1342 (5th Cir.
1972), cert. denied, 410 U.S. 943 which con-
cluded that §1983 does not vest federal
courts with jurisdiction over uniquely
local substantive matters which would
create unnecessary interference with
orderly state processes.
Moore v. State Highway Department of
Georgia, 467 F.2d 944 (1972), which pre-
vented the plaintiff from litigating the
same cause of action by changing legal
theories and forums.
Duke v. State of Texas, 477 F. 2d 244 (1973),
cert. den. 415 U.S. 978, which applied
Younger to state civil proceedings and
emphasized the failure to use state court
procedures before resorting to the federal
system.
Simmons v. Jones, 478 F.2d 321 (5th Cir.
1973), which forbids the enlistment of
federal courts in efforts to enforce state
law merely upon the assertion of flimsy
constitutional grounds.
Williams v. Rubiera, 539 F.2d 479, 474 (5th
Cir. 1976):
“This case does not present a situa-
tion like that in Gibson v. Berryhill,
supra, in which the Supreme Court held
that a state Board of Optometry was in-
competent to adjudicate the issues
pending before it by reason of the
members’ personal interest in the case.
The obvious bias of the Board precluded
the predicate of Younger's application,
which otherwise would have prevented
federal intervention in the state
administrative proceeding to suspend
and revoke licenses of individual op-
tometrists. (Emphasis added in la-
sentence.)
CONCLUSION
The importance of the jurisdictional and abstention
questions raised in this case is obvious. They far out-
weigh the importance of any questions that will arise
when or if the case is decided on its merits. Because the
questions are so important and because the Court of
Appeals decision produces confusion in our juris-
prudence, we respectfully submit that it would be most
unfortunate if the Supreme Court passed up this
opportunity to clarify these matters.
This —. day of January, 1978.
Eugene Hardwick Polleys, Jr.
Associate City Attorney
P. O. Box 1340
Government Center
Columbus, Georgia 31902
Attorneys for Petitioners
CERTIFICATE OF SERVICE
I certify that I have caused to be served the neces-
sary copies of this petition on Joel M. Gora, American
Civil Liberties Union Foundation, 22 Bast 40th Street,
New York, New York 10016, and on Margie Pitts
Hames, 794 Juniper Street, NE, Atlanta, Georgia
30309, by causing the printer to place said copies in the
United States mail, postage prepaid.
This — day of January, 1978.
Eugene Hardwick Polleys, Jr.
la
APPENDIX A
JUDGMENT
Filed: Apr. 17, 1975
In the United States District Court
for the Middle District of Georgia
Columbus Division
ROBERT LEONARD, et al.,
Plaintiffs
versus Civil Action No, 1514
THE CITY OF COLUMBUS, et al.,
Defendants
Consistent with the opinion of the Court filed con-
currently herewith, IT IS CONSIDERED, ORDERED
AND ADJUDGED thatthe plaintiffs’ prayers for relief
are denied and the complaint is dismissed.
ENTERED this 17th day of April, 1975.
J. ROBERT ELLIOTT
UNITED STATES DISTRICT
JUDGE
OPINION
(Number and Title Omitted)
Filed: Apr. 17, 1975
This suit stems from certain events occurring dur-
ing the “Summer of 1971“ in Columbus, Georgia.
Other groups of plaintiffs have litigated constitu-
tional claims arising during this period, and both
federal and state courts have refused to sustain their
complaints. See the unpublished opinion of this Court
in Community Action Group, et al. v. City of Colum-
bus, et al, (Civil Action No. 1528 in the Columbus Divi-
sion, decided January 31, 1972), which decision was af-
firmed by the Court of Appeals for the Fifth Circuit at
473 F.2d 966 (1973), and rehearing denied at 475 F.2d
1404, See also Sumbry, et al. v. Land, 127 Ga. App. 786
(1972) (195 S. E. d 228), cert. den. 94S. Ct. 598. A reading
of these cases gives some insight into the turbulent
local “atmosphere” which prevailed during the period
referred to. ’
The present action was brought under the
provisions of Sections 1331 and 1343 of Title 28 and
Sections 1981 and 1983 of Title 42 of the United States
Code, There were originally 38 plaintiffs who re-
quested injunctive and declaratory relief with regard
to alleged discriminatory employment practices by
the Columbus Police Department, but at the pre-trial
conference of January 16, 1975 plaintiffs’ counsel
abandoned these contentions and stated that the seven
remaining plaintiffs, who had been discharged from
the Columbus Police Department on May 31, 1971,
would pursue only the relief sought in divisions 1, 2, 10
3a
and 11 of the prayers of the complaint which seek dam-
ages for wrongful discharge and injunctive relief for
reinstatement.
It should be noted at the outset that although the
complaint was filed in June, 1971 it was not until
December, 1974 that the plaintiffs requested that the
matter be set down for trial, whereupon a pre-trial con-
ference was promptly scheduled and the case was
brought on for trial on February 10, 1975. By that time
not only had 31 of the original 38 plaintiffs withdrawn
from the case, but 5 of the 7 individual defendants no
longer had any official connection with the City and
the Police Hearing Board had passed out of existence.
Since the Court disposes of the case on juris-
dictional and abstention grounds and does not reach
the merits of the plaintiffs’ claim, only a few basic
facts need be recited.
The 7 plaintiffs,60f whom stified at the trial, were
black police officers who were discharged from their
positions in the Columbus Police Department on May
31, 1971 as a result of their action in deliberately cut-
ting off American flag insignia from their official uni-
forms during a picketing demonstration in front of
Police Headquarters in full view of television and
other news media. The nub of the problem was not the
picketing and the carrying of signs but was rather this
abuse of the uniform and the plaintiffs’ stated inten-
tion to continue to refuse to wear the flag patch. Police
Chief B. F. McGuffey signed the May 31 discharge
letter and Safety Director Joseph W. Sargis issued a
concurring public statement on the same date, The
Mayor of Columbus also participated in this decision.
4a
These three officials form an executive “chain of
authority” under the Charter of the Columbus Con-
solidated Government.
On June 4, 1971 the attorney for the plaintiffs ad-
dressed letters to defendants Sargis, Leavell and
Bentley, all of whom were permanent members of the
Police Hearing Board, requesting hearings before the
Board with regard to the discharges as follows: This
is to advise that my client named above wishes to
preserve his rights to a hearing before the Police
Hearing Board. I would appreciate at least seven days
prior notice of the hearing since it will be necessary
for me to arrange my Atlanta court calendar so that I
may be present in Columbus for the hearing.” On June
9, 1971 plaintifis’ attorney addressed a letter to Mr.
Sargis confirming a telephone conversation the same
date with regard to the prospective hearings, stating:
“We are anxious to have a hearing on these matters
and request that all efforts be made to give us an early
hearing date.” On June 10, 1971 (which was the same
day on which he received the letter immediately above
referred to), defendant S. W. Brown, Deputy Chief of
Police, addressed letters to each of the plaintiffs
informing them that a “Police Hearing Board will be
scheduled in the near future to hear your appeal and
vou will be notified of the time, date and place the hear-
ing will be conducted. One June 24 and 25, 1971 Brown
addressed notification letters to the plaintiffs and
these letters included a number of charges in addition
to the incident of May 31, and Brown's testimony at
trial indicated that these charges and supporting evi-
dence were being formulated over a period of time
before and after the flag incident. The plaintiffs’ com-
plaint was filed in this Court on June 18, 1971, but was
not served on the Mayor of Columbus until June 24.
Pursuant to their request, three separate hearing
boards were convened in July, 1971 to hear the cases of
the seven plaintiffs. At these hearings all of the plain-
tiffs were represented by counsel] in the person of Mr.
Peter Rindskopf, whose name also appears as co-
counsel on the complaint filed in this Court. By its ac-
tion the Board determined that none of the plaintiffs
should be reinstated and they were so notified. No
attempt was made by the plaintiffs to review the
Board’s decisions in the state courts.
It has been observed that the “Civil Rights Act, un-
like federal habeas corpus, does not permit a second
bite at the cherry”. Lackawanna Police Benevolent
Association v. Balen, 446 F.2d 52, 53 (2 Cir. 1971). By
attempting to invoke the jurisdiction of this Court
after invoking the jurisdiction of the Police Hearing
Board, the plaintiffs have sought the forbidden “se-
cond bite”. They seek to relitigate the same cause of
action, based on the same set of facts, merely by
changing legal theories and sovereignties. They doso
despite the availability of a state process of judicial
review of decisions of quasi-judicial tribunals such as
the Police Hearing Board. In McClung v. Richardson,
232 Ga. 530 (207 S.E.2d 472) (1974), in a cose dealing
with a decision of this same Columbus Police Hear-
ing Board, the Georgia Supreme Court has said:
„.. . We are of the opinion that in making its
decision the board acts in a judicial or quasi-
judicial capacity. Therefore, any erroneous
decision by the board, which is adverse to an
employee. may be reviewed by certiorari to
the superior court.“ (p. 533)
It is not the proper function of federal district courts
to review questions of fact or law to which state of-
ficials or judges have addressed themselves.
Although no reference is made in the complaint to
the final decision of the Police Hearing Board (because
that decision came at the conclusion of the proceed-
ings which the plaintiffs had instituted, and this suit
was filed while the proceedings were still in
progress), the members of the board are named as
defendants and it is clear from the prayers of the com-
plaint and from all the evidence and argument heard
by the Court in this case that the purpose of this suitis
to have this Court review and reverse the action of that
tribunal.
The district court can not do this. The
jurisdiction possessed by the District Courts
of the United States is strictly original. ‘A
federal district court has no original juris-
diction to reverse or modify the judgment of a
state court.’ (citing cases) Federal courts have
no authority to act as an appellate arm of the
state courts. (citing cases)“
Sitton v. United States, 413 F.2d 1386, at 1389 (5
Cir. 1969).
This Court has had previous occasion to deal with a
situation of this nature. In the case of Moore v. State
7a
Highway Department of Georgia, et al., Civil Action
No. 945 in the Thomasville Division (1971), the
Highway Department had instituted a condemnation
proceeding to take some of Moore’s property for
highway uses. Moore objected to the taking in the state
court proceedings and when the state court decided the
question adversely to him he, instead of continuing
the litigation in the state courts by way of appeal,
sought to circumvent the state court decision by filing
a complaint in this Court seeking an injunction by in-
voking the provisions of the Civil Rights Act, con-
tending that there was a conspiracy on the part of the
defendants to take his property because he was a mem-
ber of the black race. This Court sustained the defen-
dant’s motion for summary judgment and dismissed
the complaint, holding that the state trial and
appellate procedure afforded the plaintiff a forum in
which he could have asserted all of the contentions
made in the federal suit and that this was only an
attempt to litigate the same cause of action by chang-
ing legal theories and forums. This Court’s action was
affirmed by judgment of the Court of Appeals for the
Fifth Circuit, Moore v. State Highway Department of
Georgia, 467 F.2d 944 (1972).
The fact that the plaintiffs in the present case filed
their action before the state tribunal had made its deci-
sion and the fact that the matter was not reviewed
beyond the level of a state quasi-judicial tribunal
should make no difference because of the underlying
principle that federal district courts are not appellate
tribunals and because of the outright irrationality of
allowing jurisdiction to be conferred simply because
the plaintiffs failed to present the issues to the state
courts and ultimately to the United States Supreme
Court.
“If a litigant chooses not to continue to assert
his rights after an intermediate tribunal has
decided against him, he has concluded his
litigation as effectively as though he had pro-
ceeded through the highest tribunal available
to him.”
Angel v. Bullington, 330 U.S. 183, 189 (1947).
Plaintiffs predicate their claim of wrongful dis-
charge on constitutional grounds and on the alleged
misapplication of a local ordinance which they ask
this Court to construe in their prayers for relief.! The
present federal action seeking reinstatement would
have been obviated had the plaintiffs prevailed in
their view before any of the four levels of state
tribunals available to them — the Hearing Board, the
Muscogee Superior Court on a writ of certiorari (Ga.
Code Ann. §19-101), the Georgia Court of Appeals on
an appeal (Ga. Code Ann. §2-3704 and §2-3708), and the
Georgia Supreme Court on another writ of certiorari
(Ga. Code Ann. §24-3637 and §24-4537). It was in this
same type of situation that the United States Supreme
Court created the classic abstention doctrine in
Railroad Commission of Texas v. Pullman Company,
312 U.S. 496 (1941). In that case an order of the Railroad
Commission was attacked on constitutional grounds
1 The second prayer of the plaintiffs’ complaint is as follows:
“2. That, this Court exercise its pendent jurisdiction
and Chief of Police, B. F. McGuffey be preliminarily and
permanently enjoined from discharging plaintiffs
Leonard, Arnold, Clark, Smith, Willis, Pearson, and White
on the grounds that he lacks the power or authority under
City of Columbus Ordinance 71-7 to discharge police of-
ficers summarily as he did on May 31, 1971 and enjoin the
Chief of Police, the Police Department and all other defen-
dants from refraining to reinstate said plaintiffs and from
withholding back pay from May 31, 1971. (Emphasis
supplied.)
coupled with a contention that the Commission ex-
ceeded its authority under a state statute. The Court
said:
“In this situation a federal court of equity is
asked to decide an issue by making a tentative
answer which may be displaced tomorrow by
a state adjudication ... The reign of law is
hardly promoted if an unnecessary ruling of a
federal court is thus supplanted by a con-
trolling decision of a state court. The re-
sources of equity are equal to an adjustment
that will avoid the waste of a tentative deci-
sion as well as the friction of a premature con-
stitutional adjudication.”
“If there was no warrant in state law for the
Commission’s assumption of authority there
is an end of the litigation; the constitutional
issue does not arise. The law of Texas appears
to furnish easy and ample means for deter-
mining the Commission's authority. (pp. 500-
501)
The Court concludes by saying that the District Court
should have stayed its hand.
During its current term the Supreme Court has
again confirmed and applied the abstention doctrine
in Harris County Commissioners Court v. Moore, 95
S. Ct. 870 (decided February 18, 1975). What the court
said in that case concerning a Texas statute could just
as well be said concerning the Columbus ordinance
here under attack:
10a
Were there is an action pending in state
court that will likely resolve the state law
questions underlying the federal claim, we
have regularly ordered abstention.
Similarly, when the state law questions have
concerned matters peculiarly within the
province of the local courts, ... we have in-
clined toward abscte:ition.
“Among the cases that call most insistently
for abstention are those in which the federal
constitutional challenge turns on a state stat-
ute the meaning of which is unclear under
state law. If the state courts would be likely to
construe the statute in a fashion that would
avoid the need for a federal constitutional rul-
ing or otherwise significantly modify the
federal claim, the argument for abstention is
strong...”
95 S. Ct. 870, 875, 876.
Another form of the abstention doctrine forbidding
federal disruption of state administrative processes
was enunciated in Burford v. Sun Oil Co., 319 U.S. 315
(1943), and the facts of the present case call for a
Burford-type abstention as well as the Pullman-type
abstention. In Burford the state had provided for deter-
mination of cases and for formulation of policy by an
administrative agency with expeditious and adequate
judicial review in the state courts. Instead of following
the available state route, the plaintiff filed a federal
complaint. In dismissing the federal action the Bur-
ford court observed that conflicts of state law inter-
pretation almost certainly would result from in-
tervention by lower federal courts, while if the state
lla
procedures were followed ultimate review of federal
questions could be had in the United States Supreme
Court.
“Under such circumstances, a sound respect
for the independence of state action requires
the federal equity court to stay its hand.”
319 U.S. 315, 334.
When the question of the propriety of a federal in-
junction against a state regulatory order was again
considered in Alabama Public Service Commission v.
Southern Railway Co., 341 U.S. 341 (1951), the Supreme
Court continued to steer the course set in the leading
case. The court observed that the plaintiff had made no
showing that the Alabama procedure for judicial
review of administrative orders was inadequate and
no showing that the procedure prevented the court's
review of federal questions unsuccessfully litigated
before the state tribunals.
“As adequate state court review of an
administrative order based upon
predominantly local factors is available to
appellee, intervention of a federal court is not
necessary for the protection of federal rights.
341 U.S. 341, 349.
The present case is in essence an employment dispute,
involving a local regulatory scheme which is of great
interest to the local government, and cases of this
genre normally are appropriate for state adjudication.
This Court should not serve as an instrumen“ for the
disruption of state administrative proceedings con-
i2a
ducted on matters of local concern. The courts in In-
diana State Employees Association, Inc. v. Boehning,
357 F. Supp. 1374 (S.D. Indiana 1973) and Surowitz v.
New York City Employees’ Retirement System, 376
F. Supp. 369 (S.D. New York 1974) have reached the
same conclusion, and this Court concurs in the
reasoning of those cases.
Although we are not asked in this case to enjoin the
state court proceedings, we consider it appropriate to
recall the doctrine of equita e restraint” discussed
in Younger v. Harris, 401 U.S. 37 (1971) and its com-
panion cases as additional authority for the disposi-
tion of the case at bar. At its outset, the Younger opin-
ion expressed a “national policy forbidding federal
courts to stay or enjoin pending state court
proceedings except under speciai circumstances." 401
U.S. 37, 41. More policy is expressed shortly
thereafter.
“Since the beginning of this country’s history
Congress has, subject to few exceptions,
manifested a desire to permit state courts to
try state cases free from interference by
federal courts.”
401 U.S. 37, 43.
Subsequent pages discuss the requiréments of
irreparable injury, bad faith, and harassment for ob-
taining injunctive relief. The opinion also makes it
clear that the opportunity to raise constitutional
claims in the pending state proceeding weighs against
federal interference. Although Younger arises in the
context of a criminal proceeding, nothing in the deci-
13a
sion precludes its application to a civil proceeding.
For that matter, its policy principles — assuming they
be sound — ought to require its application in civil
proceedings. What's good for “Our Federalism” in the
criminal context ought to be good also in the civil con-
text. It appears that the Court of Appeals for the Fifth
Circuit in Duke v. State of Texas, 477 F.2d 244 (1973),
cert. den. 415 U.S. 978, has adopted this view:
“We iterate that the Younger principles of
equity, comity and federalism apply to federal
intervention in state ‘civil’ as well as
‘criminal’ proceedings, even where the exer-
cise of First Amendment rights is involved;
two of our sister Circuits have so held,
Cousins v. Wigoda, 7 Cir. 1972, 463 F.2d 603, 92
S. Ct. 2610, 34 L.Ed.2d 15 (Rehnquist, Circuit
Justice); Lynch v. Snepp, 4 Cir. 1973, 472 F.2d
769.
477 F. 2d 244, 248.
Despite subsequent discussion of the connection
between the civil proceeding and penal statutes, the
Duke court does not indicate that it will require such a
connection to exist in order to validate the above quot -
ed holding;? this subsequent discussion perhaps
reflects a desire to maintain the closest possible
2 Indeed, the Court indicates in its opinion that no such connec-
tion is required, the following statement appearing at page 251 of
the opinion:
“It is a time-tested rubric of our federalism that:
“Where a state court and a court of the United States may
each take jurisdiction, the tribunal which first gets it holds
it to the exclusion of the other, until its duty is fully per-
formed and the jurisdiction invoked is exhausted; and this
rule applies alike in both civil and criminal cases.’ Taylor
v. Taintor, 1873, 16 Wall. (83 U.S.) 366, 370, 21 L.Ed. 287, 290.
14a
kinship with the factual background of Younger. After
this and other discussion, the Duke court then expands
on the above holding:
Thus, the federal court here intruded itself
into the processes of state litigation at a time
when an adequate appellate remedy was
available in the state courts. Such intrusion
was improper as disruptive to the delicate
balance between federal and state courts im-
plicit in traditional concepts of comity and
federalism. As representative of the dominant
partner in the necessary interplay between the
two sovereigns, federal courts must be es-
pecially sensitive to this balance and
assiduous in its preservation...
“The plaintiffs below made no effort to
utilize orderly state court procedures before
resort to the federal system. . Other courts
have indicated that failure to pursue state
appellate remedies is a factor to be considered
in refusing federal intervention in an ongoing
state civil proceeding, Lynch v. Snepp, supra,
472 F.2d at 775-776; cf. Cousins v. Wigoda,
supra, 463 F.2d at 607-608. A party may not in-
voke the aid of a federal court, alleging that his
state remedies are inadequate, without having
first tested the sufficiency of those remedies
and having found them to be wanting.“
477 F.2d 244, 252.
All that was said in Younger and Duke also has rele-
vance to the case decided today. And since Duke ex-
tended Younger to cover a civil judicial proceeding,
— ere
15a
we see no reason why the same principle should not
apply to an administrative proceeding which is quasi-
judicial in nature. It is recognized that in this case the
state proceeding had not been concluded at the time
the federal complaint was filed but if the plaintiffs
cannot use the federal court to take a second bite at the
fruit after it has ripened into a state court order, no
principle of federalism persuades us to allow them to
pluck the fruit before it has ripened — particularly
when they themselves planted the seeds by solemnly
requesting and setting into motion and participating
in the procedures for obtaining a state adjudication.
The Court addresses itself to one more doctrine —
exhaustion of state administrative remedies — not for
the purpose of invoking it in reaching the conclusion
in this case but for the purpose of recognizing its ex-
istence and the controversy which surrounds it. The
United States Supreme Court has left open the ques-
tion of whether plaintiffs under 42 U.S.C. §1983 must
exhaust their state administrative remedies in ap-
propriate cases. Gibson v. Berryhill, 411 U.S. 564
(1973). Judge Noel in Eqner v. Texas City Independent
School District, 338 F. Supp. 931 (S.D. Texas 1972) has
written a comprehensive, lucid, and persuasive opin-
ion to the effect that a plaintiff may not proceed under
the Civil Rights Act where state administrative and
judicial remedies are demonstrably adequate and
available both in theory and in practice. There
appears to be some conflict in the Fifth Circuit with
this conclusion, not only in cases cited in Eqner but
also in the later case of Polk v. State Bar of Texas, 480
F.2d 998 (5 Cir. 1973) — which held the Younger doc-
trine inapplicable in a proceeding before a grievance
committee of the state bar and which case the Court
16a
here finds distinguishable from the instant case
because of the conclusion there that the grievance
committee action was not a “pending matter” (page
1002, footnote 11) or was “final within the institution”
(page 1003). As to this continuing dispute over the ex-
haustion theory, the Court today declines to enter the
fray. However, the Court explicitly concludes that the
remedies in the Georgia state courts and under
Georgia law were both available and adequate, and,
since plaintiffs in this case were already parties to a
State proceeding initiated at their request, the Court
also expresses the view that if the exhaustion doctrine
ever receives unquestioned recognition in this circuit
or in the nation, it perhaps will achieve this status in
circumstances similar to those present in this case.
Certainly “Our Federalism” would be well served by a
doctrine which at least said They who invoke must
also exhaust”.
A consideration of the foregoing compels this Court
to conclude that the complaint should be dismissed.
The jurisdiction of this Court is original, not
appellate. This Court has no jurisdiction in this case
because it cannot assume the duties of a court of
review. Even if this Court had jurisdiction, the various
abstention doctrines lead to the same result. The Court
recognizes that district courts, particularly under
Pullman, can retain jurisdiction and stay their hand
until the state courts act. However, no purpose would
be served here by such a solution. Under Burford
dismissal is more appropriate. The long delay on the
part of the plaintiffs in bringing this cause of action to
trial militates against any stays or further delays. The
complaint will be dismissed.
17a
This 17th day of April, 1975.
J. ROBERT ELLIOTT
UNITED STATES DISTRICT
JUDGE
Robert LEONARD et al.
Plaintiffs-Appellants,
versus
The CITY OF COLUMBUS et al.
Defendants-Appellees.
*
No. 75-2344.
United States Court of Appeals.
Fifth Circuit.
May 9. 1977.
Rehearing En Banc Granted July 1. 1977.
Appeal from the United States District Court for the
Middle District of Georgia.
Before BROWN, Chief Judge, and COLEMAN and
MORGAN, Circuit Judges.
COLEMAN, Circuit Judge.
18a
Robert Leonard and thirty-seven others filed this ac-
tion in the United States District Court for the Middle
District of Georgia, June 18, 1971, seeking declaratory
relief, equitable relief, and damages. As originally
cast, the suit alleged that the defendants engaged in
certain racially discriminatory employment prac-
tices. At the pre-trial conference, however, the suit
was radically narrowed, leaving only seven
policemen plaintiffs with claims for job reinstatement
plus damages for wrongful discharge. Before trial,
one of the seven remaining plaintiffs also opted out.
Thus, of the original thirty-seven, we now have six
left, quite a decimation of forces, to say the least.
After a three day non-jury trial in February, 1975,
the District Court entered an order dismissing the
complaint on jurisdictional and abstention grounds.
The plaintiffs appeal, asking this Court to vacate the
dismissal and to instruct the District Court to decide
the case on the merits. Their position is well taken.
The turbulent events from which this case arose
have been well documented in other cases. See, Com-
munity Action Group v. City of Columbus, 5 Cir., 1973,
473 F.2d 966, reh. den., 475 F.2d 1404; Sumbry v. Land,
127 Ga.App. 786, 195 S.E.2d 228 (1972), cert. den., 414
U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 (1973).
The basic facts from which this appeal arose were:
In May, 1971, the Columbus, Georgia, police depart-
ment employed approximately 318 officers, of whom
fifty-two were black. Various black officers including
appellants, formed the Afro-American Police League.
This was the vehicle by which the black officers
19a
presented their grievances to public officials and by
which they publicized their complaint of discrimina-
tion against blacks within the police department. The
group’s activities included issuing a press release
which criticized various police activities, holding a
press conference on those charges, and formulating a
petition of grievances, describing their complaints of
discrimination within the department.
On May 29, 1971, a black patrolman, John Brooks,
failed to appear in court as a witness and was charged
with contempt. He was subsequently arrested under
the Judge’s order. He was also suspended indefinitely
on charges of conduct unbecoming an officer and
feigning sickness to avoid duty. Due to this, the seven
officers picketed the police station on May 29 and 30,
1971. On May 30, a meeting was held between the dis-
gruntled black officers and various civic leaders.
Appeals were made for the patrolmen to return to
work. A motion was made that they go back to work,
which carried by a split vote. No bargains were ap-
parently struck at the meeting but it was stated that an
attempt would be made to confer with officials to see if
a solution to the complaints could be achieved.
Later on May 30, Patrolman Leonard was called off
his beat and told to report to police headquarters.
When he arrived, the deputy chief read a list of charges
which were to be directed against Leonard. Patrolman
Clark was also called in and presented with various
charges.
Upset over what they thought was unfair treatment
and a violation of a “cooling off” period allegedly
agreed upon, the black policemen met on the morning
of May 31 and decided to again picket the police
department. Wearing their police uniforms, each of
the seven policemen carried hand-lettered signs with
statements such as: “We Don’t Want to be Policeboys —
We Want to be Policemen”, and“ Afro-American Police
League Want (sic) Justice.“ Later that day, with the
news media assembled in front of the station, the
seven black officers publicly unstitched the United
States flag emblem from their uniforms. They stated
that the American flag represented liberty and justice,
and they would not wear the flag until they received
those things for which the flag stood.
They resumed picketing for a while, but were told to
report to the police major’s office. When they arrived,
they were advised that they had been dismissed from
the police force and were given letters explaining
their dismissal. The letters stated:
“Effective this date, May 31, 1971, you are
discharged from the Columbus Police Depart-
ment for violation of Section 39, paragraphs
‘G’ and ‘R’ of the General Rules of Conduct of
the Police Manual, which states:
“(G) Conduct unbecoming an officer
which might be detrimental to the service
“(R) Any other act or omission contrary
to good order and discipline of the depart-
ment
in that you did publicly remove the American
Flag from the Columbus Police Uniform while
picketing in front of Police Headquarters on
May 31, 1971.
ee ee
21
The American Flag was made an official
part of the Columbus Police Uniform by a un-
animous vote of the City Commission on
August 18. 1969.
Very truly yours,
B. F. McGuffey
Chief of Police”
Later that day, the Public Safety Director held a
press conference at which he read a statement which
explained the actions taken by the City in dismissing
the officers.!
1 Ihave this date instructed Chief B. F. McGuffey to dismiss from
the Columbus Police Department the following officers:
Patrolman George Arnold
Patrolman J. H. Clark
Patrolman Robert Leonard
Patrolman G. L. Smith
Patrolman W. L. Pearson
Patrolman F. L. White
Patrolman V. Willis
for:
Conduct unbecoming an officer which might be detrimental to
the service.
Other acts of omission contrary to good order and discipline of
the department.
The Director of Public Safety, Chief of Police and Command Of-
ficers have exercised patience and forbearance concerning the
conduct individually and as a group by these black officers who
call themselves the Afro-American Police League.
Beginning March 26, 1971, and on various dates thereafter, these
officers have repetitiously made baseless allegations of unlawful
conduct, racism, and discrimination against their fellow officers,
the Director of Public Safety, Chief of Police and ranking officers.
They did not present their grievances through channels prior to
other public proclamations and accusations.
The F. B. I. Grand Jury, and a Special Committee appointed by
the Mayor have addressed themselves to the group's discontents.
This obviously has not been satisfactory to these men who are
more concerned with publicity than fact.
Today they picketed the Columbus City Police Department and
removed the American Flag from their uniforms. These men did
not enlist in the Police Department, they do not have to wear that
uniform or Flag again; they are dismissed.
As the case is now presented, the basis of appellants’
complaint concerns allegations of procedural defects
in the dismissals and discharge for unconstitutional
reasons. At the time of the dismissals, City Ordinance
No. 71-7 was in effect. This ordinance established dis-
ciplinary procedures for the Columbus Police Depart-
ment. The appellants complain that their dismissals
were effectuated without the procedural safeguards
afforded by the ordinance.?
On June 4, 1971, counsel for appellants wrote the
defendants, stating that the discharged patrolmen
wished to preserve their rights to a hearing before the
Police Hearing Board and requested seven days’
notice prior to the hearings. On June 10, the Deputy
Chief sent a letter to the appellants, replying that each
had the right to appeal their dismissals to the Board
and that the hearing would be scheduled in the near
future. The letters also said that they would be notified
of the date, time, and place for the hearing.
On June 18, the present suit was filed in the United
States District Court.
On June 24 and 25, the appellants received letters
from the Deputy Chief, advising them that their hear-
ings were scheduled for June 28. In addition to
restating the charges contained in the original letters
of dismissal, these letters set forth additional charges
against appellants based on conduct prior to their dis-
2 Although their complaint centers on their being dismissed
before receiving a hearing, they also state that they failed to
receive prior notice of the charges, did not have an opportunity to
respond, and were denied the rights of confrontation and to consult
with counsei.
charges.“ At the request of Leonard’s counsel, the
hearing was postponed until Juiy 9. Five other
appellants received a hearing on July 15. White’s hear-
ing was held on July 22. The dismissals of Leonard and
White were unanimously upheld by the Board. The
remaining dismissals were upheld on four to two
votes. No attempt was made by the plaintiffs to have
the Board decision reviewed in the state courts,
although such review is available, Ball v. Police Com-
mittee of the City of Atlanta, 136 Ga.App. 144, 220
S.E.2d 479, 480 (1975).
As noted, following a trial in this action, the District
Court disposed of the case on jurisdictional and
abstention grounds and did not reach the merits of the
plaintiffs’ claims. In so doing, the Court stated:
“It has been observed that the ‘Civil Rights
Act, unlike federal habeas corpus, does not
permit a second bite at the cherry’. Lackawan-
na Police Benevolent Association v. Balen, 446
F. 2d 52, 53 (2 Cir., 1971). By attempting to in-
voke the jurisdiction of this Court after in-
3 These additional charges were as follows:
Arnold: Feigning sickness to escape duty; participation in un-
lawful picket.
Clark: Conduct unbecoming an officer by use of profane and
abusive language toward female employees of police department;
participation in unlawful picket; absent from duty without leave.
Leonard: Feigning sickness to escape duty; two counts of
neglect of duty; participation in unlawful picket; conduct un-
becoming an officer.
Pearson: Feigning sickness to escape duty; participation in
unlawful picket. ‘
Smith: Participation in unlawful picket.
White: Conduct unbecoming an officer by pawning a stolen
movie projector; participation in an unlawful picket; feigning
sickness to escape duty.
Willis: Participation in unlawful picket.
voking the jurisdiction of the Police Hearing
Board, the plaintiffs have sought the for-
bidden ‘second bite’. They seek to relitigate the
same cause of action, based on the same set of
facts, merely by changing legal theories and
sovereignties. They do so despite the
availability of a state process of judicial
review of decisions of quasi-judicial tribunals
such as the Police Hearing Board. (citing
McClung v. Richardson, 232 Ga. 530, 207 S. E. 2d
472 (1974).”’
The second factor upon which the District Court bas-
ed its opinion was that plaintiffs’ claim of wrongful
discharge was predicated upon constitutional
grounds and the alleged misapplication of the local or-
dinance. Accordingly, had the plaintiffs prevailed
before any of the four levels of state tribunals
available to them there would have been no necessity
for the federal action seeking reinstatement. This, said
the Court, presented a classic case for the application
of the abstention doctrine:
“The present case is in essence an employ-
ment dispute, involving a local regulatory
scheme which is of great interest to the local
government, and cases of this genre normally
are appropriate for state adjudication. This
Court should not serve as an instrument for
the disruption of state administrative pro-
ceedings conducted on matters of local con-
cern.”
The facts and legal issues here presented are not
novel. A strikingiy similar case was before this Court
in Moreno v. Henckel, 5 Cir., 1970, 431 F.2d 1299. In
Moreno, a city security guard was fired for “conduct
prejudiciai to good order’. He appealed the dismissal
to the San Antonio Civil Service Committee which
recommended that he be reinstated. This
recommendation, however, was not followed and the
City Manager upheld Moreno’s dismissal. Despite the
availability to Moreno of adequate state court review,
he elected to file a § 1983 action in the United States
District Court. This suit for injunctive relief, a
declaratory judgment, and damages, alleged that he
had been discharged in a procedurally defective
manner for unconstitutional reasons. The District
Court applied the abstention doctrine and dismissed
the complaint on the ground that “a remedy was
available to the plaintiffs in the Texas Courts”. Id. at
1300. We reversed. In so doing we stated:
“The fact that a state remedy is available is
not a valid basis for federal court abstention.
* * * *
“After [Moreno's] dismissal by the City
Manager, he was forced to choose between one
court and another court to decide his rights un-
der the Civil Rights Act. He made the natural
choice. His case turns upon federal rights of a
particularly high order.
* * * *
“The abstention doctrine is an exception to
the litigant’s choice of forum, applied ‘only in
narrowly limited. special circumstances“
* * * *
“We yet like to believe that wherever the
Federal Courts sit, human rights under the
Federal Constitution are always a proper sub-
ject for adjudication, and that we have not the
right to decline the exercise of that juris-
diction simply because the rights asserted
may be adjudicated in some other forum.”
Moreno v. Henckel, supra, at 1300, 1307, 1309.
We doubt that this result falls afoul of the recent
Supreme Court decision of Juidice v. Vail, ___ U.S.
97S. Ct. 1211, 51 L.Ed.2d 376 (dated March 22, 1977).
Therein, the Supreme Court applied the principles of
Younger v. Harris* and Huffman v. Pursue, Ltd.5 to an
injunction by the District Court against enforcement
of contempt procedures in New York state courts. The
High Court there stated that nothing more was re-
quired to invoke Younger than the party sopportunity
to present their federal claims in the state proceed-
ings (emphasis in original). Juidice, however, in-
volved a writ running from a state court which had
jurisdiction to issue it, not the failure to exercise a
state court appeal from local administrative action.
We think Moreno v. Henckel, supra, teaches that the
District Court should have decided this case on the
merits. Accordingly, we vacate the judgment of dis-
missal and remand the case for a decision on the
merits, the Court having already conducted a full
evidentiary trial in the matter.“
4 401 U.S. 37. 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).
5 420 U.S. 592, 95 S.Ct. 1200, 43 L. Ed. 2d 482 (1975).
6 On remand, at its initial determination, the District Court may
allow the record to be appropriately supplemented.
27a
VACATED and REMANDED.
ON PETITION FOR REHEARING
AND PETITION FOR REHEARING EN BANC
Before BROWN, C. J., and THORNBERRY,
COLEMAN, GOLDBERG, AINSWORTH, GODBOLD,
MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL
and FAY, Circuit Judges.
BY THE COURT:
A member of the Court in active service having re-
quested a poll on the application for rehearing en banc
and a majority of the judges in active service having
voted in favor of granting a rehearing er banc,
IT IS ORDERED that the cause shall be reheard by
the Court en banc with oral argument on a date
hereafter to be fixed. The Clerk will specify a briefing
schedule for the filing of supplemental briefs.
Robert LEONARD et al.,
Plaintiffs-Appellants,
versus
The CITY OF COLUMBUS et al.
Defendants-Appellees.
No. 75-2344.
United States Court of Appeals,
Fifth Circuit.
Oct. 26, 1977.
Appeal from the United States District Court for the
Middle District of Georgia; J. Robert Elliott, Chief
Judge.
Before BROWN, Chief Judge, THORNBERRY,
COLEMAN, GOLDBERG, AINSWORTH, GODBOLD,
MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL
and FAY, Circuit Judges.
BY THE COURT:
The panel opinion in this case is reported, Leonard
v. City of Columbus, 5 Cir., 1977, 551 F.2d 974.
Upon rehearing at New Orleans on September 28,
1977, the Court en banc adheres to the panel opinion as
published.
The judgment of the District Court is REVERSED
and REMANDED.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
October Term, 1977
No. 75-2344
Dist. Ct. No. CA-1514
ROBERT LEONARD, ET AL..
Plaintiffs-Appellants,
versus
THE CITY OF COLUMBUS, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court for the
Middle District of Georgia
4
Before BROWN, Chief Judge. THORNBERRY,
COLEMAN, GOLDBERG, AINSWORTH, GOD-
BOLD, MORGAN, CLARK, RONEY, GEE.
TJOFLAT, HILL and FAY, Circuit Judges.
_ JUDGMENT ON REHEARING EN BANC
This cause came on to be heard on rehearing en banc
with oral argument;
30a
ON CONSIDERATION WHEREOF, The Court en
banc adheres to the panel opinion as published;
and the judgment of the said District Court is
hereby reversed, and that this cause be, and the
same is hereby remanded to the said District Court
in accordance with the opinion of this Court;
It is further ordered that the defendants-appellees
pay to plaintiffs-appellants, the costs on appeal to
be taxed by the Clerk of this Court.
October 26, 1977
Issued as Mandate:
Robert LEONARD et al.
Plaintiffs-Appellants,
versus
The CITY OF COLUMBUS et al.
Defendants-Appellees.
No. 75-2344.
United States Court of Appeals,
Fifth Circuit.
Oct. 26, 1977.
Specially Concurring Opinion
Jan. 4, 1978.
Appeal from the United States District Court for the
Middle District of Georgia; J. Robert Elliott, Chief
Judge.
31a
Before BROWN, Chief Judge, THORNBERRY,
COLEMAN, GOLDBERG, AINSWORTH, GODBOLD,
MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL
and FAY, Circuit Judges.
BY THE COURT:
The panel opinion in this case is reported, Leonard
v. City of Columbus, 5 Cir., 1977, 551 F.2d 974.
Upon rehearing at New Orleans on September 28,
1977, the Court en banc adheres to the panel opinion as
published.
The judgment of the District Court is REVERSED
and REMANDED.
GEE, Circuit Judge, with whom CLARK and
RONEY, Circuit Judges, join, specially concurring:
Though I agree with the court's decision, I wish to
acknowledge developments in the case law since
Moreno v. Henckel, 431 F. 2d 1299 (5th Cir. 1970), lest its
bare c‘tation convey the impression that exhaustion
and abstention in section 1983 suits are not issues for
future argument in this circuit.
The first of these developments came less than a
year after Moreno, with the Supreme Court's opinion
in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971). And although the Younger absten-
tion doctrine has thus far found application only in
cases concerned with the exercise of state enforce-
ment powers, it could conceivably require federal
deference whenever a strong state interest has at-
32a
tached, as when a state court becomes substantially
involved in a private action against a defendant who
wishes to raise constitutional issues in federal court.
See Developments in the Law — Section 1983 and
Federalism, 90 Harv.L.Rev. 1133, 1313-14 (1977). See
also Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51
L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S.
592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).
The second post-Moreno development perhaps
foretells an erosion of McNeese v. Board of Education,
373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), which
established that persons suing under section 1983
need not exhaust state administrative remedies before
seeking federal relief. In its later decision of Gibson v.
Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488
(1973), the Court intimated that administrative ex-
haustion might be appropriate in section 1983 actions
when the state initiates the administrative proceed-
ing and when the individual charged suffers no
deprivation prior to the completion of that proceeding.
Id. at 574-75, 93 S.Ct. 1689.
Finally, I note several cases, as yet of uncertain im-
port, in which the Supreme Court has relied upon the
adequacy and availability of state remedies. See In-
graham v. Wright, 430 U.S. 65 1. 97 S. Ct. 1401, 1415-16, 51
L.Ed.2d 711 (1977); Stone v. Powell, 428 U.S. 465, 96S.Ct.
3037, 49 L.Ed.2d 1067 (1976); Paul v. Davis, 424 U.S. 693,
96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Of course, both
Ingraham and Paul are explainable as attempts to
limit the scope of expansively worded constitutional
provisions. See Developments, supra at 1269-70. But if
federal rights are to be defined with any reference to
33a
the substantive guarantees afforded by state law, it is
reasonable to conclude that federal remedies should
likewise be fashioned with due consideration for the
avenues of relief available in state courts and
administrative tribunals. This conclusion gains
strength from the Court's potentially significant
statement in Stone v. Powell that, Idlespite dif-
ferences in institutional environment and the unsym-
pathetic attitude to federal constitutional claims of
some state judges in years past. we are unwilling to
assume that there now exists a general lack of ap-
propriate sensitivity to constitutional rights in the
trial and appellate courts of the several States.” 428
U.S. at 494 n. 35, 96 S.Ct. at 3051.
therefore offer this brief concurrence in the belief
that the law is presently in transition here and that,
since it is, resting this decision, as does the majority,
on a mere citation of Moreno’s seven-year-old authori-
ty wrongly implies that it is static.
34a
APPENDIX B
First Amendment to the United States Constitution
Congress shall make no law respecting an es-
tablishment of religion, or prohibiting the free exer-
cise 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.
Fifth Amendment to the United States Constitution
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in ac-
tual service in time of War or public danger; nor shall
any person be subject for the same offense to be twice
put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself,
nor be deprived of life, liberty or property, without due
process of law; nor shall private property be taken for
public use, without just compensation.
Fourteenth Amendment to the
United States Constitution
Section 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 im-
35a
munities 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.
Section 2. Representatives shall be apportioned
among the several States according to their respective
numbers, counting the whole number of persons in
each State, excluding Indians not taxed. But when the
right to vote at any election for the choice of electors
for President and Vice President of the United States,
Representatives in Congress, the Executive and
Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male in-
habitants of such State, being twenty-one years of age,
and citizens of the United States orin any way abridg-
ed, except for participation in rebellion, or other
crime, the basis of representation therein shall be
reduced in the proportion which the number of such
male citizens shall bear to the whole number of male
citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or
Representative in Congress, or elector of President
and Vice President, or hold any office, civil or
military, under the United States, or under any State,
who, having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a
member of any State legislature, or as an executive or
judicial officer of any State, to support the Constitu-
tion of the United States, shall have engaged in in-
surrection or rebellion against the same, or given aid
or comfort to the enemies thereof. But Congress may
by a vote of two-thirds of each House, remove such dis-
ability.
Section 4. The validity of the public debt of the
United States, authorized by law, including debts in-
curred for payment of pensions and bounties for serv-
ices in suppressing insurrection or rebellion, shall
not be questionec Sut neither the United States nor
any State shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the
United States, or any claim for the loss or emancipa-
tion of any slave; but all such debts, obligations and
claims shall be held illegal and void.
Section 5. The Congress shall have power to en-
force, by appropriate legislation, the provisions of
this article.
Constitution of Georgia of 1945, Art. VI, Sec. IV,
Para. V.
Ga. Code Ann. 2-3905
They shall have power to correct errors in inferior
judicatories by writ of certiorari, which shall only
issue on the sanction of the Judge, and said courts, and
the judges thereof shall have power to issue writs of
mandamus, prohibition, scire facias, and all other
writs that may be necessary for carrying their powers
fully into effect, and shall have such other powers as
are, or may be conferred on them by law.
CHAPTER 19-1. IN WHAT CASES THE WRIT OF
CERTIORARI LIES.
37a
Ga. Code Ann. 19-101. When writ of certiorari will lie.
The writ of certiorari shall lie for the correction of
errors committed by justices of the peace, corporation
courts or councils, or any inferior judicatory, or any
person exercising judicial powers, including the or-
dinary, except in cases touching the probate of wills,
granting letters testamentary and of administration;
also from the Supreme Court to the Court of Appeals
as provided by section 2-3708 (Constitution of 1945).
Ga. Code Ann. 19-203. To justices’ courts and other in-
ferior judicatories; petition.
When either party in any cause in a justice’s court,
municipal corporation or police court, council, or any
inferior judicatory, or before any person exercising
judicial powers, shall be dissatisfied with the decision
or judgment in such cause, such party may apply for
and obtain a writ of certiorari by petition to the
superior court, in which petition he shall plainly and
distinctly set forth the errors complained of. On such
petition being filed in the office of the clerk of the
superior court, with the sanction of the judge of the cir-
cuit, or the judge of some other circuit, as provided for
in section 19-202, indorsed thereon, together with the
bond or affidavit, as hereinafter provided, it shall be
the duty of such clerk to issue a writ of certiorari,
directed to the justice of the peace of the district where
the decision complained of was made, or other
tribunal or person whose decision or judgment is the
subject matter of complaint, requiring such justice of
the peace, or other tribunal, or person to certify and
send up all the proceedings in said cause to the
superior court, as directed in said writ of certiorari.
(Act 1850, Cobb, 529. Acts 1878-9, p. 155.)
Ga. Code Ann. 19-401. Hearing on writ; notice to op-
posite party; jury trial on demand.
Certiorari causes shall be heard by the court without
a jury, in term time or in vacation and in chambers or
in open court, upon reasonable notice to the parties, at
any time that such matters may be ready for hearing.
Where traverse to the answer has been filed and jury
trial demanded, said matter may be tried at any time a
jury is available therefor.
(Acts 1961, pp. 190, 192.)
Ga. Code Ann. 19-402. Errors considered; scope of
review; technical distinctions abolished.
No ground of error shall be considered which is not
distinctly set forth in the petition. The scope of review
shall be limited to all errors of law, and determination
as to whether the judgment or ruling below was
sustained by substantial evidence. All technical dis-
tinctions heretofore existing as to what questions
would be considered, such as questions concerning
judgments absolutely void, or assignments of error
drawing in question the legal constitution or jurisdic-
tion of the tribunal below, are hereby abolished.
(Acts 1961, pp. 190, 192.)
39a
42 U.S.C. § 1981. Equal rights under the law
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be par-
ties, give evidence, and to the full and equal benefit of
all laws and proceedings for the security of persons
and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
R.S. § 1977.
42 U.S.C. § 1983. Civil action for deprivation of rights
Every person who, under color of any statute, or-
dinance, regulation, custom, or usage, of any State or
Territory, 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 pro-
ceeding for redress.
R.S. § 1979.
28 U.S.C. § 1331. Federal question; amount in con-
troversy; costs
(a) The district courts shall have original
jurisdiction of all civil actions wherein the
40a
matter in controversy exceeds the sum or value of
$10,000, exclusive of interest and costs, and arises un-
der the Constitution, laws, or treaties of the United
States.
(b) Except when express provision therefor is
otherwise made in astatute of the United States, where
the plaintiff is finally adjudged to be entitled to
recover less than the sum or value of $10,000, com-
puted without regard to any setoff or counterclaim to
which the defendant may be adjudged to be entitled,
and exclusive of interests and costs, the district court
may deny costs to the plaintiff and, in addition, may
impose costs on the plaintiff. June 25, 1948, c. 646, 62
Stat. 930: July 25. 1958, Pub.L. 85-554, § 1, 72 Stat. 415.
28 U.S.C. § 1331. Federal question; amount in con-
troversy: costs
(a) The district courts shall have original jurisdic-
tion of all civil actions wherein the matter in con-
troversy exceeds the sum or value of $10,000, ex-
clusive of interest and costs, and arises under the Con-
stitution, laws, or treaties of the United States except
that no such sum or value shall be required in any
such action brought against the United States, any
agency thereof. or any officer or employee thereof in
his official capacity.
(b) Except when express provision therefor is
otherwise made in a statute of the United States, where
the plaintiff is finally adjudged to be entitled to
recover less than the sum or value of $10,000 computed
without regard to any setoff or counterclaim to which
41
the defendant may be adjudged to be entitled. and ex-
clusive of interests and costs, the district court may
deny costs tothe plaintiff and, in addition, may impose
costs on the plaintiff.
As amended Oct. 21, 1976, Pub.L. 94-574, § 2, 90 Stat.
2721.
28 U.S.C. § 1343. Civil rights and elective franchise
The district courts shall have original jurisdiction
of any civil action authorized by law to be commenced
by any person:
(1) To recover damages for injury to his person or
property, or because of the deprivation of any right or
privilege of a citizen of the United States, by any act
done in furtherance of any conspiracy mentioned in
section 1985 of Title 42;
(2) To recover damages from any person who fails
to prevent or to aid in preventing any wrongs men-
tioned in section 1985 of Title 42 which he had
knowledge were about to occur and power to prevent;
(3) To redress the deprivation, under color of any
State law, statute, ordinance, regulation, custom or
usage, of any right, privilege or immunity secured by
the Constitution of the United States or by any Act of
Congress providing for equal rights of citizens or of
all persons within the jurisdiction of the United
States;
42a
(4) To recover damages or to secure equitable or
other relief under any Act of Congress providing for
the protection of civil rights, including the right to
vote. June 25, 1948, c. 646, 62 Stat. 932; Sept. 3, 1954,
c. 1263, § 42, 68 Stat. 1241; Sept. 9, 1957, Pub.L. 85-315,
Part III, § 121, 71 Stat. 637.
28 U.S.C. § 2201. Creation of remedy
In a case of actual controversy within its jurisdic-
tion, except with respect to Federal taxes, any court of
the United States, upon the filing of an appropriate
pleading, may declare the rights and other legal
relations of any interested party seeking such
declaration, whether or not further relief is or could be
sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be
reviewable as such. June 25, 1948, c. 646, 62 Stat. 964;
May 24, 1949, c. 139. § 111, 63 Stat. 105; Aug. 28, 1954, c
1033, 68 Stat. 890; July 7, 1958, Pub.L. 85-508, § 12(p), 72
Stat. 349.
28 U.S.C. § 2201. Creation of remedy
In a case of actual controversy within its jurisdic-
tion, except with respect to Federal taxes other than
actions brought under section 7428 of the Internal
Revenue Code of 1954, any court of the United States,
upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any in-
terested party seeking such declaration, whether or
43a
not further relief is or could be sought. Any such
declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such.
As amended Oct 4, 1976. Pub.L. 94-455, Title XIII,
§ 1306(b)(8), 90 Stat. 1719.
28 U.S.C. § 2202. Further relief
Further necessary or proper relief based on a
declaratory judgment or decree may be granted, after
reasonable notice and hearing, against any adverse
party whose rights have been determined by such
judgment. June 25, 1948, c. 646, 62 Stat. 964.
AN ORDINANCE
No. 71-7
An Ordinance amending the Code of Ordinances of
Columbus, Georgia, providing for disciplinary
procedures for the Columbus Police Department.
THE COUNCIL OF COLUMBUS, GEORGIA,
HEREBY ORDAINS:
SECTION 1.
That the Code of Ordinances of Columbus, Georgia,
be and the same is hereby amended by adding to
Chapter 17 thereof, a new Article III to read as follows:
“CHAPTER 17
“ARTICLE III — DISCIPLINARY PROCEDURES
“Sec. 17-34. Purpose.
“To establish procedures for the prompt and
thorough investigation of alleged or suspected mis-
conduct of commissioned officers of the Columbus
Police Department, including violation of statutes, or-
dinances and departmental rules and orders by sworn
members of the department, but specifically exclud-
ing civilian employees.
Sec. 17-35. Authority and Responsibility.
“Each member of the Department will perform the
duties and assume the obligations of his rank in the in-
vestigation of complaints or allegations of miscon-
duct against members of the Department and will
cooperate fully with the personnel conducting the in-
vestigation. Supervisory and Command Personnel
will themselves initiate investigations when the sub-
ject complained about or observed in connection with
an infraction is within the scope of their authority.
Sec. 17-35.1 Same — The Internal Investigation.
“Internal investigations will be initiated by the
Deputy Chief of Police who will exercise staff super-
vision over all personnel investigations, and provide
information and investigative assistance to all
divisions of the Department as may be required to
maintain Departmental integrity. With the exception
of minor infractions which Commanding Officers are
expected to resolve, all alleged or suspected actions of
Departmental personnel that involve the possible
commission of a criminal offense, misconduct,
neglect of duty, or other violation of Departmental
45a
rules or orders must be reported to the Deputy Chief of
Police. This report will be made by the Superior or
Commanding Officer who first receives information
of an alleged violation, even when it is believed to be
unfounded. Anonymous reports will be forwarded in
the same manner as those in which the complainantis
identified. N
“Sec. 17-35. 2. Same — Exceptions to these Re-
quirements.
“1. Complaints relative to difference of opinion
between Police Officers and citizens over the issuance
of traffic citations do not come under the purview of
this order. However, where atraffic case also involves
an allegation that a Police Officer was in violation of
law or Departmental rules, an investigation restricted
to the allegation of misconduct will be conducted in
conformity with the procedures established by this
Article.
“2. When an alleged or observed infraction does not
involve persons outside the Department and is of a
minor nature, Commanding Officers will not look to
higher authority to initiate action. Such cases are the
responsibility of the Commanding Officers to resolve
and they will be expected to take necessary corrective
action without delay. Examples of such cases include
but are not limited to:
“a. Lateness.
“b. Uniform and equipment violations.
„. Personal appearance infractions.
d. Minor omissions in assigned duties.
46a
Minor infractions of Departmental
regulations concerned with efficiency or
safety.
“Sec. 17-35.3. Same — The Deputy Chief of Police.
ma 1
9
we
“—
Make an independent investigation of a com-
plaint; or
Make a preliminary investigation and assign
selected personnel to develop full facts under
the Deputy Chief’s supervision.
Be responsible for the supervisory and ex-
peditious completion of investigations alleg-
ing misconduct.
Conduct an investigation at the request of any
member of the Department who justifiably feels
threatened by a false accusation or a contrived
situation involving false evidence. Such mem-
bers are authorized to report their situations
directly to the Deputy Chief, Chief of Police
and/or the Director of Public Safety without
reporting to their superiors.
8.
Upon completion of sustained investigations
by the Deputy Chief of Police:
(a) Mark investigation “unfounded” or insuf-
ficient for charges”.
(b) Mark investigation for disciplinary
processing.
47a
“Sec. 17-35.4. Same — The Chief of Police.
(A) The Chief of Police shall review and pass upon
(B)
(C)
recommendations of Deputy Chief of Police as
set forth in Section 17-35.3, Subparagraph 5.
When the Chief of Police has passed upon the
recommendations of the Deputy Chief of Police
and determined that there is sufficient merit to
a complaint to start a disciplinary hearing, he
shall give the accused notice as set forth in Sec-
tion 17-37.1 of this Article.
The Chief of Police shall perform duties as-
signed to him for the organization of a Police
Hearing Board as set forth in Section 17-37.2 of
this Article.
TY Chief of Police shall exercise the powers as
shown in Section 17-38 of this Article.
“Sec. 17-36. Officers Rights.
“To insure that such investigations are conducted in
a manner conducive to good order and discipline,
meanwhile observing and protecting the individual
rights of each member of the force, the following rules
of procedure hereby are established:
1.
The interrogation of any Department member
shall be at a reasonable hour, preferably when
-the member is on duty, and during the daylight
hours unless the exigencies of the investiga-
tion dictate otherwise. In the latter event,
reassignment of the member's tour of duty shall
be employed.
a
*
4.
5.
a |
48a
The interrogation shall take place at a location
designated by the investigating officer, usually
at Police Headquarters.
The subject of an inquiry shall be informed of
the rank, name and command of the in-
terrogating officer and the identity of all per-
sons present during an interrogation. If a mem-
ber of the Department is directed to leave his’
beat and report for interrogation to head-
quarters, his commanding officer shall be
promptly notified of his whereabouts.
The officer under investigation shall be in-
formed of the nature of the investigation before
any interrogation commences. Sufficient infor-
mation to reasonably apprise the member of the
allegations should be provided. If it is known
that the member of the Department being in-
terrogated is a witness only, he should be so in-
formed.
The interrogation shall be completed with
reasonable dispatch. Reasonable respites shall
be allowed. Time shall be provided also for per-
sonal necessities, meals, telephone calls, and
rest periods as reasonably necessary.
The member shall not be subjected to any offen-
sive language, nor shall be threatened with
transfer, disinissal, or other disciplinary
punishment. No promise of reward shall be
made as an inducement to answering
questions. Nothing herein is to be construed as
to prohibit the investigating officer from infor-
.
8.
“9.
49a
ming the member that his conduct can become
the subject of disciplinary action resulting in
disciplinary punishment. Officers must
cooperate fully with the investigation officer
unless they are the accused. Failure to fully
assist in the investigation will make the officer
subject of disciplinary action.
In all cases wherein a member is to be in-
terrogated concerning an alleged violation of
the Department Rules and Regulations which,
if proven, may result in his dismissal from the
service or the infliction of other disciplinary
punishment upon him, he shall be afforded, if he
so requests, a reasonable opportunity and
facilities and at least 24 hours to contact and
consult privately with an attorney of his own
choosing. An attorney of his own choosing may
be present during the interrogation but may not
participate in the investigation except to
counsel the member. However, in such cases,
the interrogation may not be postponed for pur-
pose of counsel past 10:00 a.m. of the day follow-
ing notification of interrogation.
The complete interrogation of the officer shall
be recorded mechanically or by a steno-
grapher. There will be no “off the record”
questions. All recesses called during the
questioning shall be noted in the record.
If an officer is under arrest or is likely to be, that
is, if he is a suspect or the target of a criminal
investigation, he shall be given his rights pur-
suant to the Miranda decision.
50a
10. Under the circumstances described in
paragraph 7, the member shall be given an ex-
act copy of any written statement he may ex-
ecute, or if the questioning is mechanically or
stenographically recorded, the member shall
be given a copy of such recording or transcript
if requested by him.
11. The refusal by an officer to answer pertinent
questions concerning any non- criminal matter
may result in disciplinary action.
12. Members may be requested to submit to poly-
graph, intoximeter, or other standard in-
vestigative examination employed. Such tests
must be given if requested by the member.
“Sec. 17-37. Disciplinary Procedure.
Sec. 17-37.1. Preliminary Notification.
When the Deputy Chief of Police determines that
there is sufficient merit to a complaint to start a dis-
ciplinary hearing he shall:
1. Advise the accused in writing of the charges to
be brought against the officer, charges may be
personnally served or served by registered
mail.
2. The accused will be advised that he has a right
to counsel and may call witnesses in his behalf.
“3. He shall also be afforded a hearing date within
thirty (30) calendar days of the notice in the
absence of unusual circumstances.
51a
Sec. 17-37. 2. Police Hearing Board.
Prior to the hearing date the accused will be ad-
vised that the charges will be heard by a police hear-
ing board comprised of the Director of Public Safety
and two civilian board members appointed by the
Council of Columbus, Georgia as permanent mem-
bers who may not be removed under Subsection 3
hereof and four officers of the Columbus Police
Department selected by the Chief of Police.
„1. The officers must each be of equal or higher
rank than the accused.
“29 The officers cannot be from the division in
which the accused serves.
“3. The accused may ask that any one officer on the
Board be removed without cause and Chief will
provide another member.
„4. One of the civilian board members shall be
appointed to serve a term ending January 1,
1972, and until his successor is named and
appointed and one of the civilian board mem-
bers shall serve a term ending January 1, 1973,
and until his successor is named and appoint-
ed. All appointees to such board made after the
initial appointments shall be for unexpired
terms or for terms of two years. Civilian board
- appointees shall not be eligible to succeed
themselves.
“5 Atleast five (5) members shall be present and a
vote of four (4) shall be necessary for any ac-
tion.
52a
“Sec. 17-37.3. The Hearing.
1.
2.
Hearings will be conducted in rooms sufficient-
ly large to accomodate the members of the
Board, the accused’s attorneys, members of the
news media, and representative interested par-
ties, and such hearing shall be public.
The police hearing board shall not be bound by
the rules of evidence but may consider any
evidence which it deems relevant or material to
the subject of inquiry.
Sec. 17-37.4. Same — Procedure.
“The hearing shall consist of:
(A) Opening statement of charges and conten-
“(B)
“(C)
D)
tions of the Police Department. The officer ac-
cused shall have the right to present an open-
ing statement at the time or before present-
ing evidence in his defense.
Presentation of Police Department evidence.
Presentation of evidence for officer accused.
(Opening statement of officer may be pre-
sented prior to presentation of evidence if
opening statement has not been previously
made).
Presentation of evidence of Police Depart-
ment strictly confined to rebuttal of officers
evidence.
53a
“(E) Closing statement. In all cases the Police
Department may present a closing statement
or may waive it and in all cases the officer ac-
cused shall have the right to present the final
closing statement or may waive it.
Sec. 17-37.5. Same — Witnesses.
3
we
W
Witnesses may be called by the Police Depart-
ment or the officer charged.
Witness will be excluded from hearing room
until needed.
Either the Police Department or the officer
charged shall have the right to have any
witness present throughout the hearing upon
showing that such witness is necessary to pre-
sent the case of the Police Department or the of-
ficer charged.“
SECTION 2.
The Police Hearing Board created by Section 17-37.2
of the Code of Ordinances, as amended by Section 1 of
this Ordinance shall be considered a successor Board
to the Board of Public Safety as it heretofore existed
prior to the effective date of consolidation. Any and all
cases pending before the Board of Public Safety in
which appeals had been filed which were not heard
prior to January 1, 1971, may be continued, heard and
disposed of by the Police Hearing Board as the
successor Board to the Board of Public Safety.
54a
Introduced and read at a regular meeting of the
Council of Columbus, Georgia, held on the 12th day of
January, 1971; read a second time at a regular meeting
of said Council held on the 19th day of January, 1971,
and adopted at said meeting by the affirmative vote of
nine (9) members of said Council.
Councilman Batastini voting Yes.
Councilman Binns voting Yes.
Councilman Forte voting Yes.
Councilman Illges voting Absent.
Councilman Land voting Yes.
Councilman McClung voting Yes.
Councilman McDaniel voting Yes.
Councilman Rigdon voting Yes.
Councilman Turgeon voting Yes.
Councilman Wright voting Yes.
/s/ LEMUEL H. MILLER, JR.
CLERK
/s/ J. R. ALLEN
MAYOR
Submitted to the Mayor for signature,
this the 21 day of Jan. 1971
Sec: 3-202(1)
/s/ LHM
Clerk of Council
This ordinance received, signed by the
Mayor, at 9:43 o’clock A.M. on the 2ist
day of Jan. 1971, and became
law at said time received.
Sec: 3-202(2)
/s/ LEMUEL H. MILLER, JR.
Clerk of Council
AN ORDINANCE
No. 71-154
An Ordinance defining responsibility of the Chief of
Police regarding suspensions and dismissals prior to
a hearing before a Police Hearing Board.
THE COUNCIL OF COLUMBUS, GEORGIA,
HEREBY ORDAINS:
SECTION 1.
That the Code of Ordinances of Columbus, Georgia.
be and the same is hereby amended by adding thereto a
new Section numbered 17-38, defining the authority of
the Chief of Police regarding suspensions and dis-
missals prior to a hearing before a Police Hearing
Board, which said Section shall read as follows:
“Sec. 17-38. Suspensions and Dismissals.
“The Chief of Police can dismiss any officer prior
to a hearing by the Police Hearing Board for:
1. Insubordination
2. Use of alcoholic beverages or drugs which are
illegal while on duty
8.
N QnA pe w
Gross immorality
Bribery
Conversion or gross mishandling of evidence
Dangerous misuse of firearms
Evidence of the officer's commission of a
felony
Conduct unbecoming an officer
The Chief and officers of the rank of Sergeant and
above can suspend an officer for violation of rules
and regulations or conduct unbecoming an officer
upon good information of such misconduct for no
more than twenty-four hours without approval of
the Chief, Deputy Chief, or a Major.
A. Officers will not be suspended for more than
thirty (30) days unless they have been served
with a warrant or are subjects of in-
dictments.”’
Introduced and read at a regular meeting of the
Council of Columbus, Georgia, held on the ist day of
June, 1971; read a second time at a regular meeting of
said Council held on the 10th day of June, 1971, and
adopted at said meeting by the affirmative vote of 10
members of said Council.
Councilman Batastini voting YES.
Councilman Binns voting YES.
Councilman Forte voting YES.
57a
Councilman Iilges voting YES.
Councilman Land voting YES.
Councilman McClung voting YES.
Councilman McDaniel voting YES.
Councilman Rigdon voting YES.
Councilman Turgeon voting YES.
Councilman Wright voting YES.
/s/ LEMUEL H. MILLER, JR.
CLERK
/s/ J. R. ALLEN
MAYOR
Submitted to the Mayor for signature,
this the day of JUN 10, 1971
Sec: 3-202(1)
/s/ LEMUEL H. MILLER, JR.
Clerk of Council
This ordinance received, signed by the
Mayor at 11:35 o’clock A.M. on the
day of JUN 11, 1971, and became
law at said time received.
Sec: 3-202(2)
/s/ LEMUEL H. MILLER, JR.
Clerk of Council
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.