# Petition — City of Columbus v. Robert Leonard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0864%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 443 U.S. 905 ## Text 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 —' é— ͤ ̃—̃— ̃—̃— —ß ͤ ͤ — ͤ(—ö 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0864%3A1. Public record. Not legal advice.