Petition — Peek v. Fitzgerald
Supreme Court brief1981
Ask Donna
What actually matters in this document.
Text
=a
Hy j mewee *SUPFENG Court, US,
Phy St Cee
80-170) APR 14 jgy
ALEXA ‘|. STEVAS,
$e |
No.
In The Supreme Court
of the
United States
April Term, 1981
M. RANDALL PEEK, Petitioner
v.
ERNEST BILLY FITZGERALD
and
MARILYN FITZGERALD, Respondents
On Writ of Certiorari
From the United States Court of Appeals
| For the Fifth Circuit
Petition for Writ of Certiorari
Terry T. Coles
Attorney at Law
Room 304 — Executive Building
125 Trinity Place
Decatur, Georgia 30030
(404) 378-4893
QUESTIONS PRESENTED
1. Whether the final decision rendered by the United States
Court of Appeals for the Fifth Cercuit directly contravenes the
United States Supreme Court’s opinions in Younger v. Harris,
Cameron v.,Johnson, and Kugler v. Helfant.
2. Whether the final decision rendered by the United States
Court of Appeals for the Fifth Circuit directly conflicts with
important and significant principles of federal judicial restraint
promulgated by the United States Supreme Court.
3. Whether the decision rendered by the United States Court
of Appeals for the Fifth Circuit is void due to ab initio lack of |
jurisdiction.
7%
TABLE OF CONTENTS
i Seen Ge WEES GN CNUROUIND . 5c cc ccc cow dsiccrcee
RINE SB OS err ie ae
mmeanse
RCS A ES A i a a
EEE PO LET Pe eee OT
a eae
ree 2 6.60 @2-8°6 FERED 6 OO Ce BO 'O186'D 6 0 OS OS 4.6
-%
IN THE
SUPREME COURT OF THE UNITED STATES
April Term, 1981
BOs ctisenieaightiies
M. RANDALL PEEK, Petitioner,
v.
ERNEST BILLY FITZGERALD
and
MARILYN FITZGERALD, Respondents
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES SUPREME COURT
The petitioner M. Randall Peek respectfully prays that a
writ of certiorari issue to review the judgment and opinion of
the United States Court Of Appeals For The Fifth Circuit
entered in this proceeding on January 14, 1981.
OPINION BELOW
The opinion of the Court of Appeals for the Fifth Circuit,
not yet reported, as well as the opinion of the Federal District
Court, Northern District of Georgia appear in the Appendix
hereto.
JURISDICTION
The judgment of the Court of Appeals for the Fifth Circuit
was entered on January !4, 1981 and this petition for certiorari
was filed within ninety (90) days of that date. This court’s juris-
diction is invoked under 28 U.S.C. § 1254 (1).
wy
7%
QUESTIONS PRESENTED
1. Whether the final decision rendered by the United States
Court of Appeals for the Fifth Circuit directly contravenes the
United States Supreme Court’s opinions in Younger v. Harris,
Cameron v. Johnson, and Kugler v. Helfant.
2. Whether the final decision rendered by the United States
Court of Appeals for the Fifth Circuit directly conflicts with
important and significant principles of federal judicial restraint
promulgated by the United States Supreme Court.
3. Whether the decision rendered by the United States Court
of Appeals for the Fifth Circuit is void due to ab initio lack of
jurisdiction.
STATUTORY PROVISIONS INVOLVED
United States Code, Title 48.
§ 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance,
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 Consti-
tution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.
(42 USCS § 1982). United States Code, Title 28:
§2283. Stay of State court proceedings
A court of the United States may not grant an injunction
to stay proceedings in a State court except as expressly autho-
rized by Act of Congress, or where necessary in aid of its juris-
diction, or to protect or effectuate its judgments.
June 25, 1948, c. 646, 62 Stat. 968.
United States Code, Title 18.
§ 1504. Influencing juror by writing
“Whoever attempts to influence the action or decision of
any grand or petit juror of any court of the United States upon
any issue or matter pending before such juror, or before the
jury of which he is a member, or pertaining to his duties, by
writing or sending to him any written communication, in rela-
cs
i
tion to such issue or matter, shall be fined not more than one
thousand ($1,000.00) Dollars or imprisoned not more than six
(6) months or both.
Nothing in this section shall be construed to prohibit the
communication of a request to appear before the Grand Jury.”
STATEMENT OF THE CASE
(a) COURSE OF PROCEEDINGS AND DISPOSITION IN
COURT BELOW.
This is a Petition for Certiorari to review the decision
rendered by the United States Court of Appeals for the Fifth
Circuit. That opinion affirmed an order issued by the Federal
District Court for the Northern District of Georgia which en-
joined the pending state criminal prosecution of Respondent
for Embracery, Ga. Code 26-2407 and Terroristic Threats, Ga.
Code 26-1307 on the grounds that said state criminal prosecu-
tion was brought in bad faith. The Respondent first moved for
a temporary restraining order based upon allegations of bad
faith prosecution and invoked jurisdiction of the federal court
under 28 U.S.C. Sections 1331, 1343, 2201, 2202; 42 U.S.C.
Sections 1983, 1988; and the First and Fourteenth Amend-
ments to the United State Constitution. The temporary restrain-
ing order was granted and a two day hearing was held in the
District Court to determine if a preliminary injunction should
issue. A final order granting the injunction was issued six
months later. Appeal was timely filed with the United States
Court of Appeals for the Fifth Circuit and their opinion affirm-
ing the judgment rendered by the District Court was issued
January 14, 1981.
(b) This involved and complex set of circumstances began on
Thursday, September 2, 1976 when Mr. Bonner, then Sheriff
of DeKalb County, took out an arrest warrant charging the
Respondent in this case with Terroristic Threats, Ga. Code 26-
1307. These terroristic threats were made during a phone call
from the Respondent to the DeKalb County Police Department
on the morning of September |, 1976. Lieutenant Baker, Aide
to Chief Dick Hand, received the call and made a tape recording
of the conversation. During the conversation between Lieuten-
ies
ry
ant Baker and Respondent, statements were made by Respon-
dent that he had organized crime connections which he would
use to have Sheriff Bonner killed. He also stated that he owned
a semi-automatic which he would use to kill Sheriff Bonner.
The evening of September 1, 1976, Respondent was
arrested for driving under the influence of alcohol by a DeKalb
County Uniform Officer and found to be in possession of a
gun. The warrant for Respondent’s arrest was handwritten and
fairly illegible so a second warrant was typed and signed by
Magistrate Charles Smegal. The warrant was served on Respon-
dent on Saturday, September 4, 1976, and bond was set on
September 7, 1976 by Superior Court Judge Curtis Tillman
after a bond hearing. When Respondent realized that there
were two sets of warrants, one handwritten and one typed, he
signed warrants against Magistrate Clerk Charies Smegz! and
Sheriff Bonner for False Swearing and Tampering with Evi-
dence. The charges against Magistrate Clerk Charles Smegal
were dismissed by Superior Court Judge Clarence Peeler, Jr.,
at the conclusion of the hearing on these charges.
Sheriff Bonner left office at the end of 1976 after being
defeated in his bid for re-election and was indicted for murder
by a DeKalb County Grand Jury shortly after leaving office. In
view of the pending charges against Mr. Bonner, the District
Attorney (hereinafter referred to as the Petitioner) stayed any
proceedings in the cross-charges between the Respondent and
Mr. Bonner until the murder charge had been resolved at trial
and informed Respondent of that decision. In the Spring of
1977, Mr. Bonner was acquitted of the murder charge at the
conclusion of a trial in DeKalb County Superior Court.
The Petitioner then ordered that a preliminary hearing be
held in the Magistrate Court of DeKalb County to determine
the substance of the evidence existent on the cross charges
pending between the Respor.dent and Mr. Bonner. One hearing
was set for the morning of August 24, 1977 and another hear-
ing was set for the afternoon of that same day. During the
morning session, Magistrate Judge Tom Moran held a confer-
ence in his chambers and discussed the situation with the atto-
ney then retained by the Respondent and the attorney for Mr.
Bonner. At the conclusion of the conference, the Magistrate
odie
*%
stated he desired to dismiss all of the pending warrants and
called the Assistant District Attorney Michael Sheffield into
his chambers to inform Mr. Sheffield of his decision. Mr. Shef-
field voiced no objection to the Court’s decision, so the charges
were dismissed in open Court. The basis for the dismissal was
each victim’s lack of interest in prosecuting the charges at that
time.
The Petitioner (who was not present at the Magistrate
Court) felt, in his discretion (See transcript, p. 149), that an
evidentiary basis would be a preferable disposition to the cross-
charges. Because the only forum available at that point to hear
evidence on the charges was the Grand Jury of DeKalb County,
the Respondent then scheduled a presentation to the Grand
Jury of the evidence on those charges on September 13, 1977.
In consideration of the Respondent, the Petitioner personally
informed them of this Grand Jury presentation, at which time
the Respondents verbally assaulted the Petitioner in his own
office.
On or about the 8th or 9th of September, 1977, the Re-
spondents’ daughter came to the District Attorney’s Office in
an attempt to discuss the proceedings with Assistant District
Attorney Robert Wilson who was handling the case. She was
informed by the Assistant that the charges would be presented
fairly and accurately to the Grand Jury, but that he wished to
have no contact whatsoever with the Respondents. She was
also to!d that it would be inappropriate for the Respondent to
contact any Grand Jury members who would be hearing the
evidence on the Respondents’ case in the same way the Re-
spondents had contacted the July-August Term Grand Jury,
1977. (See transcript, p. 174).
In spite of this instruction, a packet of information was
mailed to the home of each member of the September-October
Grand Jury. This packet contained a transcript showing the dis-
missal of the Terroristic Threats charge at the Magistrate Court,
the very charges which were to be considered by these grand
jurors, a letter from the Respondents containing allegations
about the circumstances of the Respondent’s arrest on those
charges, a discussion about the delay between the inception of
those charges and their presentation to this grand jury, two
-5.-
ry
newspaper articles charging Superior Court Judge E. T. Hendon,
Jr., and Superior Court Judge Clyde Henley with misconduct
in their official duties, and a copy of a lawsuit which Appellees
had filed against Superior Court Judge Clyde Henley. It is im-
portant to note that Clyde Henley was the presiding Superior
Court Judge over that September-October Grand Jury and,
thus, had the responsibility for charging them and maintaining
the integrity of the grand jury process. (See transcript, p. 195-
197.) This material was intended to be received by the grand
jury members before the case against the Respondents was
heard by them. On September 13, 1977, the Terroristic Threats
case was no billed by the Grand Jury.
The Petitioner was seriously concerned about the presen-
tation of the case to the Grand Jury on September 13, 1977
for several reasons. First, one of the attorneys who had been
present at the Magistrate Court hearing had expressed some dis-
satisfaction about the way the case had been handled at the
Magistrate Court hearing. Secondly, the inappropriate contact
with the Grand Jury had influenced its consideration of the
terroristic threats charges in possible violation of a criminal
statute, Ga. Code § 26-2407, which prohibits this type of con-
tact. Thirdly, that type of contact was quite likely to impair
the integrity of the Grand Jury system. Because of these con-
cerns, the Petitioner in his discretion, decided to present all
evidence to the now empanelled November-December Grand
Jury. All evidence was presented to that Grand Jury and that
body returned a true bill of indictment against the Respondents
for Embracery and Terroristic Threats.
When the Respondents had been informed by Petitioner
on September 2, 1977 that the terroristic threats charge would
be presented to the September-October Term Grand Jury, they
filed a lawsuit against Superior Court Judge Clyde Henley
falsely charging him with imposing his will upon the District
Attorney A copy of this lawsuit was contained in the packet
mailed to the grand jury over which Judge Henley was presid-
ing. (See Record p. 21.) During the term of that September-
October Grand Jury, the Respondents were ordered to appear
for depositions in this civil suit against Judge Henley. Before
the date fo- their appearance, the Respondents sought a pro-
as EF
7%
tective order from Superior Court Judge William Dean which
was denied.
The Respondents, without any reason given, failed to
appear for their scheduled depositions and were ordered to
appear and show cause in Court as to the reason for their fail-
ure to appear. This show cause order is placed with all other
orders and motions to be heard by the Superior Court Judge
presiding over civil non-jury duty. There is no way to determine
beforehand when the motion will be heard and by what Judge.
(See transcript, p. 37, 56, 59.)
The motion appeared on the calendar on October 31, 1977
before Superior Court Judge E. T. Hendon, Jr. At that time,
the Respondents moved for Judge Hendon to recuse all the
Judges in DeKalb County, which motion Judge Hendon denied.
The Respondents never moved for Judge Hendon to recuse
himself, which motion Judge Hendon indicated he would have
granted. (See transcript, p. 56, 57.) The Respondents dismissed
the suit with prejudice, the very day the September-October
Grand Jury over which Judge Henley presided was to be dis-
charged.
On December 15, 1977, the Respondents were arraigned
on the Embracery charge and trial was set for January 3, 1978.
During the month of December, Mr. Samford, the Attorney
for the Respondents, and Mr. Wilson, the Assistant District
Attorney who would try the case, were in constant contact
concerning the case. As the Assistant District Attorney knew
he would be leaving town on Thursday, December 29, 1977,
he asked the Respondents’ attorney repeatedly what type of
pre-trial action the Respondents’ attorney intended to take as
to motions, etc., because the State’s attorney wished to be in
a position to answer these motions before trial. The State’s
attorney made it very clear that he was to leave town on Thurs-
day, December 29, 1977 and would not return until the evening
of January 2, 1978. On Friday, December 30, 1977 at 4:30
p.m., the day after the State’s attorney left town, the Re-
spondents’ attorney filed his motion in Federal District Court
for the Northern District of Georgia for a temporary Restrain-
ing Order to enjoin the State’s prosecution of the Respondent
for Embracery. The Respondents’ attorney and the District
Court Judge who was to hear the motion conferred for several
ae
-y
hours on Saturday, December 31, finally reaching the State’s
attorney that afternoon in Alabama. A hearing to determine
whether or not a Preliminary Injunction should issue against
the State’s criminal prosecution was scheduled at that time for
1:30 p.m., Tuesday, January 4, 1978 (that Monday being a
holiday). At 9:00 a.m., Tuesday, January 4, 1978, Respondent
served Superior Court Judge Clyde Henley and Superior Court
Judge E. T. Hendon, Jr., with subpoenas to appear and testify
at the Preliminary Injunction Hearing to begin at 1:30 p.m.
that very day. Judge Henley was in the middle of a criminal
trial and Judge E. T. Hendon, Jr., was also scheduled to be on
the bench that day.
At the time the application for the Temporary Restraining
Order was filed, both the Respondents’ attorney and the Dis-
trict Court Judge knew that the DeKalb Judges having previous
contact with the Respondent had recused themselves and a
judge from outside DeKalb County was coming in specially to
' try the Embracery case. (See Respondents’ complaint, p. 5.)
Secondly, the State Court was never allowed to hear the Motion
to Quash the Indictment filed by the Respondents’ attorney.
Said motion and any additional motions were to be heard be-
fore trial as is the usual procedure under the law. However, a
Temporary Restraining Order was granted on January 2, 1978
and a hearing on a Preliminary Injunction was iie!d before the
State Court ever had an opportunity to hear or decide those
motions.
A two-day hearing was held to determine if a Preliminary
Injunction should issue, but no order was issued until June 22,
1978 permanently enjoining the prosecution of the Respon-
dents.
REASONS FOR GRANTING THE WRIT
1. The final decision rendered by the United States Court
of Appeals for the Fifth Circuit directly contravenes the United
States Supreme Court’s opinion in Younger v. Harris, Cameron
v. Johnson and Kugler v. Helfant.
The United States Court of Appeals for the Fifth Circuit
held in Fitzgerald v. Peek, Opinion No. 78-2705, that when a
me Se
7%
plaintiff seeks under 48 U.S.C. 1983, to enjoin a pending State
criminal prosecution allegedly brought against him in bad faith
he does not have to show that the said pending State prosecu-
tion could not result in a valid conviction.
This ruling directly contravenes the opinions rendered by
the United States Supreme Court from 1965 in Dombrowski v.
Pfister, 380 U.S. 479 up until the last major decision in the
Younger v. Harris line of cases with Justice Stewart’s specific
definition of bad faith prosecution in Kugler v. Helfant, 421
U.S. 117(1975).
Although the court indicated in Mitchum v. Foster, 407
U.S. 225 (1972) that actions brought under 48 U.S.C. 1983
would fall under the first of the only three exceptions to Ab-
stention Statute 28 U.S.C. 2283 “expressly authorized by Con-
gress,” it is well settled that the Plaintiff seeking an injunction
in a Younger v. Harris,401 U.S. 37 (1971) situation must still
show that he is likely to succeed on the merits. Rice, Charles,
“Limiting the Younger Doctrine,” 67 Calif L. Rev. 1318, at
1325, 1326. Mr. Wright and Mr. Miller indicate that one of the
four factors essential to the court’s contemplation of a pre-
liminary injunction is the probability that the Plaintiff will
succeed on the merits. 11C Wright and Miller, Federal Practice
and Procedure § 2948 at 431-32 (1973).
In circumstances very similar to the case at bar in that they
involved alleged judicial collusion, the United States Supreme
Court in Kugler v. Helfant, supra, opined that vital to deter-
mining whether the pending State criminal prosecution should
be enjoined on bad faith grounds was the finding that the
prosecution had been brou,ht without hope of obtaining a valid
conviction. “Bad faith in this context generally means that a
prosecution has been brought without reasonable expectation
of obtaining a valid conviction” Kugler, supra, footnote 6 at
1531. This ruling in Kugler is not an unexpected one, but a
reiteration of the Supreme Court’s long established position in
this area. In 1965, the majority opinion in Dombrowski v.
Pfister, supra, stated that appellants in seeking an injunction
against a pending State criminal prosecution had stated a valid
claim under 42 U.S.C. 1983 when they alleged that the prose-
cution was brought against them in bad faith because the ap-
aQu
7%
pellees “have invoked and threaten to invoke the criminal pro-
cess without any hope of success, but only to discourage the
appellants’ civil rights activities’’ emphasis added.
Three years later, both the majority and dissenting opin-
ions in Cameron v. Johnson 390 U.S. 611 (1968) made clear
that the court must find that a valid conviction could not be
obtained in the pending State criminal prosecution before it
would enjoin said prosecution. “‘Appellant’s case that there
are special circumstances establishing irreparable injury suffi-
cient to justify federal intervention must therefore come down
to the proposition that the statute was enforced against them,
not because the Mississippi officials in good faith regarded the
picketing as violating the statute, but in bad faith as harassing
appellants’ exercise of protected expression with no intention
of pressing the charges or with no expectation of obtaining
convictions, knowing that appellants’ conduct did not violate
the statute,” at p. 619. Even more explicit is this language
found again at p. 621 where the majority states that the
“Question for the District Court was not the guilt or innocence
of the persons charged; the question was whether the statute
was enforced with no expectation of convictions but only to
discourage protected rights. The mere possibility of erroneous
application of the statute does not amount to irreparable in-
jury' necessary to justify a disruption of orderly State pro-
ceedings. Dombrowski cited. The issue of guilt or innocence is
for the State court at the criminal trial; the State was not re-
quired to prove the Appellants guilty in the federal proceeding
to escape the finding that the state had no expectation of secur-
ing valid convictions.”
The realization that the dissent fully agrees with the
majority’s above logic and language makes even more over-
whelming the Supreme Court’s mandate that a federal court
examine this factor. Consider the dissenting opinion language
at p. 623, “‘Federal courts are available to enjoin the invocation
of the State criminal process where that process is abusively
'. The Fifth Circuit has said bad faith and irreparable injury are the same,
therefore such erroneous statutory application could never amount to
bad faith in the Fifth Circuit and for this reason this case at Bar should
be reversed. See Shaw v. Garrison, 467 F2d 113) (Sth Cir. 1972).
_
invoked ‘without any hope of ultimate success, but only to dis-
courage’ the assertion of Constitutionally protected rights. 380
U.S. at 490. See also City of Greenwood v. Peacock, 384 U.S.
808-829 (1966)’, and again by finding at p. 626 that “‘the
pickets were arrested and prosecuted without any hope of ulti-
mate success” and at p. 627 ‘“‘the State cannot possibly antici-
pate a conviction of the pickets.”
According to the opinion in Perez v. Ledesma, 401 U.S.
81 (1971) decisions were rendered by the United States
Supreme Court on the same day in Younger v. Harris, supra,
Samuals v. Mackell, 401 U.S. 66 (1971) and Boyle v. Landry,
401 U.S. 77 (1971) explaining that ‘only in cases of proven
harassment or prosecutions undertaken by State officials in
bad faith without hope of obtaining a valid conviction . . . is
federal injunctive relief against pending State prosecutions
appropriate. See Younger v. Harris, supra; Ex Parte Young,
209 U.S. 123 (1908). Perez, supra, at 85. The requirement
that federal courts must look to see if the State prosecution
was brought without hope of obtaining a valid conviction
before it will issue an injunction is so strongly mandated that
even Respondent feels compelled to allege such in his original
complaint. In seeking to enjoin the pending State criminal
prosecution, he alleges that the State has violated his Constitu-
tional rights “‘by, in bad faith and for purposes of harassment,
pressing charges against them that he (State) knows cannot
form the basis for a proper conviction.” See Appendix.
The Federal District Court found in its order granting a
preliminary injunction that it was “‘unnecessary for the court
to address the question whether there is any reasonable expec-
tation of conviction of terroristic threats under Georgia law”
and further that “it is also unnecessary to address the very real
question of whether Mr. Fitzgerald could be convicted on the
embracery charge” and “‘it is finally unnecessary to address the
issue of whether the actions of Mrs. Fitzgerald constituted the
crime of embracery .. .”’ Order at p. 10 and 11 (appendix).
These findings were incorporated without any meaningful
dissection by the Fifth Circuit into its opinion by stating that
“if the Plaintiff established that the conduct allegedly retaliated
against or sought to be deterred is Constitutionally protected
eS gee
7%
and the State’s bringing of the prosecution is motivated at east
in part to retaliate against that conduct... Abad faith showing
of this type will justify an injunction regardless of whether
valid convictions could conceivably be obtained.” See Appendix.
Both the opinion rendered by the District Court and the
opinion rendered by the United States Court of Appeals for
the Fifth Circuit create an unreasonable and needless expansion
by the federal court into the State judicial process. Further-
more, both opinions ignore the specific language issued by the
United States Supreme Court in Dombrowski v. Pfister, supra,
Younger v. Harris, supra, Cameron v, Johnson, supra, and Kug-
ler v. Helfant, supra, which require in no uncertain terms that
a federal court must determine whether the State has brought
the prosecution sought to be enjoined without hope of obtain-
ing a valid conviction before that prosecution may be enjoined
by a federal court on the grounds that the said prosecution was
brought in bad faith. For that reason Petitioner respectfully
requests the United States Supreme Court to grant this Petition
for Writ of Certiorari.
2. The decision rendered by the United States Court of
Appeals for the Fifth Circuit directly contravenes the impor-
tant principles of federal judicial restraint promulgated by the
United States Supreme Court.
The issuance of a federal injunction even when permitted
by the Younger doctrine is limited by additional requirements,
one of the most significant being the principle of federalism.
Younger v. Harris, 401 U.S. 37 (1971). The Fifth Circuit’s
opinion in this case has violated this important principle of
federalism or comity, that is, the proper reluctance on the part
of the Federal Court to interfere with the orderly functioning
of the State judicial process. The United States Supreme Court
has indicated the great deference due State criminal proceed-
ings in Rizzo v. Goode, 423 U.S. 362 (1976) by explaining that
where an injunction against a criminal proceeding is sought
under Section 1983, the principles of equity, comity and fed-
eralism must nonetheless restrain a Federal Court,” at 379.
To enjoin the criminal proceeding in this case would be
to unduly interfere with the orderly State judicial processing
of this criminal prosecution. The Respondent initially filed a
i,
motion in the State court to dismiss the criminal indictment
which the state court never had the opportunity to hear or to
decide before the prosecution was enjoined by the Federal
District Court. The trial was to be heard by a judge brought
from outside the Circuit to afford the Respondent a fair trial.
The Respondent was granted longer time in which to file pre-
trial motions than usually granted in State criminal proceedings.
There is every indication that the State was overex :ending it-
self to protect the rights of the Respondent, thus negating any
justification to needlessly violate the long standing policy of
the Federal Courts to avoid interfering with the orderly func-
tioning of the State judicial process. These factors also indicate
that Respondent would have numerous adequate remedies at
law and thus would not suffer irreparable injury if the Federal
Court had properly abstained.
This doctrine of federalism also extends to the discretion-
ary functions of a State executive officer. Rizzo v. Goode,
supra. In Younger v. Harris, supra, the Court expressed con-
cern that the issuance of federal injunctive relief would impede
the performance of those functions by stating that “ordinarily
there should be no interference with State officers; primarily,
they are charged with the duty of prosecuting offenders against
the laws of the State and must decide when and how this is to
be done,” at 45. Issuance of an injunction in this case improp-
erly and needlessly interfered with the performance of the
prosecutor’s discretionary duties. It was an exercise of discretion
for the Petitioner to present evidence of the crimes to the grand
jury feeling that the best disposition of the charges would be a
disposition pursuant to a full evidentiary hearing which was
not accomplished at the preliminary hearing stage. The Peti-
tioner was adhering to his duty as an officer of the Court and
chief law enforcement official of the Stone Mountain Judicial
Circuit by seeking indictments for the Respondents’ attempt
to unlawfully influence the grand jury. This realization is made
even more significant by the Respondents’ admissions to the
elements of the crime and testimony by members of the grand
jury who were illegally contacted by Respondent. The Prose-
cutor’s role is that of an advocate with a duty to represent the
public to the best of his ability. The unjustified federal inter-
vention into the fulfillment of that role was a great disservice
a
ve
7%
to those state citizens whom he has sworn to represent.
Not only does the intervention of the Federal Court into
the orderly funetioning of a State system violate the federal
policy of abstention, but also violates the doctrine of separa-
tion of powers. The Federal Court, by issuing the injunction,
has needlessly imposed the judicial branch into the area of
executive discretionary duties. Thus, the Federal Court’s in-
tervention into the area of executive discretionary duties has
constituted a horizontal and vertical interference with the
orderly State process.
Federal
Judicial > Executive
State
The United States Supreme Court anxiously anticipated such a
problem to be avoided in Stefanelli v. Minard, 342 U.S. 117
(1951) and Doran v. Salem Inn, 422 U.S. 922 (1975) when it
stated in Rizzo v. Goode, supra, at 379 that “when the frame
of reference moves from a unitary court system... to a sys-
tem of federal courts representing the nation, subsisting side
by side with fifty state judicial, legislative, and executive
branches, appropriate consideration must be given to principles
of federalism in determining the availability and scope of equi-
table relief.”
The continuing expansion of federal injunctive relief
effected by the injunction in this case will produce an unprece-
dented burden on the Federal Courts at a time when the United
States Supreme Court is granting more and more autonomy to
state judicial, and executive functions. See Rizzo v. Goode,
supra, Trainor v. Hermandez, 431 U.S. 434 (1977); Juidice v.
Vail, 430 U.S. 327 (1977); Huffman v. Pursue, Ltd., 420 U.S.
592 (1975). The Honorable Chief Justice Burger has stated that
we “‘need to restore the State courts as the basic system of jus-
tice” and “‘has urged the State courts to take the lead in halting
the expansion of the jurisdiction of the Federal Court System.”
Speech at Conference on the Future of State Courts, National
Center of State Courts, quoted from the New York Times,
Monday, March 20, 1978, p. B12.
_14—
A halt to federal expansion will never be effectuated if
unwarranted federal judicial activism as that promoted by the
Fifth Circuit in this case is allowed to stand. Instead, federal
injunctions against pending State criminal proceedings will be-
come the motion tosuppress of the 1980’s. The Federal Courts
will come to a virtual halt while attempting to hear preliminary
injunction motions. The impending confusion is well-stated by
the Court in Stefanelli v. Minard, 342 U.S. 117(1951) at 123-
124, “If we were to sanction this intervention, we would ex-
pose every State criminal prosecution to insupportable disrup-
tion. Every question or procedural due process of law, with its
far-flung and undefined range would invite a flanking move-
ment against the system of State Courts by resort to federal
forum with review, if need be to this Court, to determine the
issue. Asserted unconstitutionality in the impaneling and selec-
tion of the grand and petit juries, in the failure to appoint
counsel, in the admission of a confession, in the creation of an
unfair trial atmosphere, inthe misconduct of a trial court all
would provide ready opportunities which conscientious coun-
sel might be bound to employ to subvert the orderly, effective
prosecution of local crime in local courts.”’
This scenario is the result of the United States Court of
Appeals for the Fifth Circuit upholding an unjustified enjoin-
ing of this pending State criminal prosecution because it has
forgotten the wise mandate of the United States Supreme
Court that the “normal thing to do when Federal Courts are
asked to enjoin pending proceedings in State courts is not to
issue such injunctions.” Younger v. Harris at 48.
For this reason we respectfully request that the United
States Supreme Court grant this petition for certiorari.
3. The United States Court of Appeals for the Fifth Cir-
cuit lacked jurisdiction to affirm the permanent injunction
against the pending State criminal prosecution in this case.
28 U.S.C. 2283 requires that a United States Federal
Court abstain from enjoining a pending State proceeding unless
the circumstances are such that they fall under one of the ex-
press exceptions listed in that abstention statute. In this case
the Plaintiff has filed a claim under 42 U.S.C. 1983 which was
held in Mitchum vy. Foster, 407 U.S. 225 (1972) to fall within
the exception “duly authorized by an Act of Congress.”
a £8
°%
However, before that injunction may be issued the Fed-
eral Court issuing such injunction must have jurisdiction over
the action. In this case the Plaintiff has failed to state a cause
of action under 42 U.S.C. 1983This failure to state a claim
under which relief could be granted deprived the United States
District Court for the Northern District of Georgia of any initial
jurisdiction to enjoin the pending State criminal prosecution.
Said failure of jurisdiction ab initio renders void any decision
issued by the United States Court of Appeals for the Fifth
Circuit.
The Plaintiff alleged that under 42 U.S.C. 1983 that the
State prosecution was brought against him in retaliation for
the exercise of his Constitutionally protected First Amendment
rights. The Fifth Circuit then held that “‘if the Plaintiff estab-
lishes that the conduct allegedly retaliated against or sought to
be deterred is Constitutionally protected and that the State’s
bringing of the criminal prosecution is motivated at least in part
by a purpose to retaliate against or deter that conduct...” See
Appendix.
The Fifth Circuit fails to enlighten the reader as to what
Constitutionally protected rights are involved, but the Respon-
dents’ allegations and the District Court’s opinion provides only
two possible alternatives, i.e., either the Respondents contact-
ing the State grand jury that was considering the possible
indictment of Respondents or the Respondents’ publication of
leaflets accusing State Court Judges of illegal and immoral acts.
The first alternative, Respondents contacting the State
grand jury which was considering an indictment against Re-
spondents is not protected by the First Amendment. A specific
State Statute Georgia Code 26-2407 prohibits an individual
who has been charged as a defendant in an indictment pending
before the State grand jury from contacting that State grand
jury. Wood v. Georgia, 370 U.S. 375 (1962) indicates that said
Georgia Statute prohibits direct communication by an indi-
vidual with a grand jury at a time when a specific indictment
against that individual is pending before that body. Wood y.
Georgia, supra, clearly distinguishes between the above situa-
tion and a communication of information pertinent to a gen-
eral investigation being conducted by a grand jury that is not
i
re
concerned with the indictment of the individual that com-
municated that information. Under the facts of this case, the
Respondent’s activities clearly fail within the conduct pro-
hibited by the Georgia Statute since the grand jury’s attention
was focused specificall, on the pending indictment of Respon-
dent at the time that each member of said grand jury received
a packet of information from the Respondent in an attempt to
influence the grand jury’s possible indictment of Respondent.
If the Fifth Circuit regarded this as the protected Constitu-
tional activity against which the State was retaliating, it is clearly
in error. Such activity is clearly prohibited under a valid state
statute, almost identical to the federal statute also prohibiting
such contact with the federal grand jury. See 18 U.S.C. 1504.
In the alternative, if the Fifth Circuit was referring to the
Respondent’s publication of leaflets accusing state judges of
illegal and immoral acts there is no basis anywhere in the record
below for their finding that such activity was Constitutionally
protected. The First Amendment is not all encompassing. Ex-
cluded from its protection are communications that are slan-
derous or obscene. To find that Respondent’s leaflets were pro-
tected under the First Amendment at least some of said leaflets
had to be introduced into evidence and viewed by the District
Court in order to determine that they were not on their face
obscene or slanderous. Not only does the District Court fail to
make any such finding, the court states that the truth or falsity
of such publications are not material to the hearing to enjoin
the pending state prosecution. (See R p. 241, p. 407-408.)
These leaflets were never made part of the record and there is
2. If the District Court found that such conduct is Constitu-
tionally protected and the Fifth Circuit has affirmed the Dis-
trict Court’s opinion on that basis, then both courts have
violated the Pullman Abstention doctrine. Such opinion would
in effect declare the state statute Ga. Code 26-2407 unconsti-
tutional before the state ‘courts have had the opportunity to
interpret said state statute. There is not one opinion rendered
by the Georgia courts interpreting this statute which is the
basis for the pending criminal prosecution of Respondent.
as )
7%
no indication that the court ever viewed any of these leaflets
in question. Those exhibits that were introduced into the record
at the hearing were the packets mailed to the grand jury in
violation of Georgia Code 26-2407. Therefore their truth or
falsity would be immaterial. The lower court appears confused
and has failed to see that although the truth or falsity of the
packets mailed to the grand jury was immaterial, the truth or
falsity of the leaflets concerning various state court judges
published not to the grand jury, but county wide, was very
material to finding whether those said leaflets were protected
by the First Amendment. Furthermore, the record is replete
with testimony that the leaflets were not only false and ob-
scene,,but were the subject of a criminal defamation warrant.
See R p. 34, 44-45, 184, 203, 205, 207, 209, 224-225, 244,
278, 282-286, 289, 294.
The mailing of the packets to the grand jury was not pro-
tected by the First Amendment as it is conduct prohibited by
a valid state statute whose language is appropriately very lim-
ited to certain specific circumstances: It is similar in every
respect to 18 U.S.C. 1504.
The record of the hearing in the District Court below is
absolutely empty of any basis to find that the publication of
the leaflets concerning the state court judges was protected by
the First Amendment.
Because neither alternative above has any foundation for
a grant of First Amendment protection, the Respondent’s
activities are not Constitutionally protected — a key element
to stating a cause of action under 42 U.S.C. 1983. Respondent’s
failure to state or demonstrate a basis for which relief could be
granted and also the District Court’s failure as shown in the
record below, to demonstrate any basis for which a finding for
relief could be found deprived the District Court of any juris-
diction to enjoin the pending state criminal prosecution. This
lack of jurisdiction ab initio makes any decision rendered by
the Fifth Circuit affirming said injunction void.
For this reason, Petitioner respectfully prays that the
United States Supreme Court grant his Petition for Writ of
Certiorari.
i
-%
CONCLUSION
For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Court of Appeals for
the Fifth Circuit. dt |
Respectfully submitted,
Terry T. Coles
Room 304 Executive Building
125 Trinity Place <
Decatur, Georgia 30030
Pa yon
°%
APPENDIX
1. Decision of the United States Court of Appeals,
ee I SIDI ON bo kid ck bade bc bo bbe s
2. Decision of the United States District Court,
Northern District of Georgia, No. CA-77-2074.........
3. Complaint by Respondents, —
No. C-77-2074A ............. | cabbie ce cok a ee 2s we
20
|
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
FILED IN CLERK'S OFFICE
U.S.D.C, — Atlanta
February 9, 1981
Ben H, Carter, Clerk
By:
Deputy Clerk
No. 78-2705
D. C. Docket No. CA 77-2074
ERNEST BILLY FITZGERALD
and
MARILYN FITZGERALD,
Plaintiffs- Appellees,
versus
M. RANDALL PEEK, District Attorney
Stone Mountain Judicial Circuit,
individually and in his official capacity,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Georgia
Before INGRAHAM, RONEY and THOMAS A. CLARK,
Circuit Judges.
JUDGMENT
This cause came on to be heard on the transcript of the
record from the United States District Court for the Northern
District of Georgia, and was argued by counsel,
ON CONSIDERATION WHEREOF, It is now here ordered
and adjudged by this Court that the judgment of the said Dis-
trict Court in this cause be, and the same is hereby, affirmed;
a,
7%
It is further ordered that defendant-appellant pay to plain-
tiff-appellees the costs on appeal to be taxed by the Clerk of
this Court.
January 14, 1981
Issued as Mandate: February 5, 1981
A true copy
Test: GILBERT F, GANUCHEAU
Clerk, U.S, Court of Appeals, Fifth Circuit
By
Deputy
New Orleans, Louisiana
February 5, 1981
- 22 =
7%
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 78-2705
ERNEST BILLY FITZGERALD
and MARILYN FITZGERALD,
Plaintiffs-Appellees,
versus
M. RANDALL PEEK, District Attorney
Stone Mountain Judicial Circuit
individually and in his official capacity,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Georgia
JANUARY 14, 1981
Before INGRAHAM, RONEY and THOMAS A. CLARK,
Circuit Judges.
PER CURIAM:
Plaintiffs, Ernest Billy and Marilyn Fitzgerald, brought suit
in federal district court to enjoin state court prosecution alleg-
edly brought in bad faith for purposes of harassing and punish-
ing plaintiffs for having exercised their First Amendment rights
in criticizing certain public officials in DeKalb County. The
district court entered a temporary restraining order and, fol-
lowing a two-day hearing, entered a final order permanently
enjoining prosecution of the Fitzgeralds on pending indict-
ments charging embracery and terroristic threats. We affirm.
= 23
|
Jurisdiction over this suit is properly predicated on 42
U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3). See Duncan vy.
Perez, 445 F.2d 557, 560 (Sth Cir.), cert. denied, 404 U.S.
940 (1971). Section 1983 is within the “expressly authorized”
exception of the federal anti-injunction statute, 28 U.S.C.A.
§ 2283. Mitchum vy. Foster, 407 U.S. 225 (1972).
The facts of this case are presented in detail in the district
court’s opinion and need not be repeated here. It is sufficient
to note that a thorough examination of the record requires the
conclusion that the district court’s finding that the prosecution
was brought in bad faith for purposes of harassment was not
clearly erroneous.
It is well established that a showing of bad faith prosecu-
tion presents a narrow exception to the doctrine of abstention
which will justify federal interference in a pending state court
criminal proceeding. See Moore v. Sims, 442 U.S. 415, 424
(1979); Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975);
Younger v. Harris, 401 U.S. 37, 49 (1971); Dombrowski y.
Pfister, 380 U.S. 479 (1965); Wilson v. Thompson, 593 F.2d
1375, 1381 (Sth Cir. 1979); Shaw v. Garrison, 467 F.2d 113,
119-22 (Sth Cir.), cert. denied, 409 U.S. 1024 (1972); Duncan
v. Perez, 445 F.2d at 560. A showing of bad faith or harass-
ment is equivalent to a showing of irreparable injury under
Younger, and irreparable injury independent of the bad faith
prosecution need not be established. Wilson v. Thompson, 593
F.2d at 1381-82;Shaw v. Garrison, 467 F.2d at 120. Moreover,
although multiple prosecutions of at least Mr. Fitzgerald were
pending, the threat of multiple or repeated prosecutions is not
necessary to establish bad faith prosecution. Wilson »v. Thomp-
son, 593 F.2d at 1381.
Nor is it necessary for plaintiff to prove that the prosecu-
tion could not possibly result in a valid conviction. In Wilson
v. Thompson, decided after the injunction involved herein was
entered, this Court enunciated a test which permits a state
criminal proceeding to be enjoined if the plaintiff establishes
that the conduct allegedly retaliated against or sought to be
deterred is constitutionally protected and that the state’s bring-
ing of the criminal prosecution is motivated at least in part by
a purpose to retaliate against or deter that conduct, and the
state fails to show that it would have decided to prosecute
— 24 —
even had the impermissible purpose not been considered. 593
F.2d at 1387. In this case, the evidence supports the finding
that the prosecution was brought for the purposes of harrass-
ment and retaliation and would not have been brought but for
the improper influence exerted on the prosecutor by certain
DeKalb judges to seek the indictments. A bad faith showing of
this type will justify an injunction regardless of whether valid
convictions conceivably could be obtained.
The handling of this case by the district court did not de-
prive defendant of any due process rights. The temporary
restraining order issued by the district judge notified defendant
of the preliminary hearing in accordance with Fed.R.Civ.P.
6 (d). Defendant did not object to the timing of the hearing
and in fact rejected the court’s offer of more time to prepare
his case. Defendant was not unfairly prejudiced by the fact
that he was represented at the hearing by an attorney who also
testified as a witness, since defendant knew at the time he
selected his attorney that the attorney, who also was the assis-
tant district attorney handling the state court prosecution of
the Fitzgeral@s, was likely to be called as a witness.
The district court’s injunction of the prosecution of the
Fitzgeralds came only after a thoughtful and well-reasoned
opinion finding facts supported by the record and correctly
analyzing the law.
AFFIRMED.
A true copy
Test: GILBERT F. GANUCHEAU
Clerk, U. S. Court of Appeals, Fifth Circuit
By
Deputy
New Orleans, Louisiana
February 5, 1981
ey. ee
7%
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FILED IN CLERK’S OFFICE
June 22, 1978
Ben H. Carter, Clerk
By
Deputy Clerk
ERNEST BILLY FITZGERALD
and MARILYN FITZGERALD
vs.
M. RANDALL PEEK, District ; CIVIL NO. C77-2074A
Attorney of the Stone
Mountain Judicial Circuit,
individually and in his
official capacity
ORDER
Ernest Billy Fitzgerald, one of the plaintiffs in this case,
has been variously described as a paranoiac, an alcoholic, a
moral degenerate, a congenital liar, a kook, a nut, and a screw-
ball. Even these are entitled to the equal protection of the law.
The accuracy of the epithets applied to Mr. Fitzgerald was not
proven at the ten hour hearing on his motion that criminal
proceedings against him be temporarily restrained. What did
become clear, however, was that Mr. Fitzgerald has quixot-
ically taken on some of the most powerful men in DeKalb
County, including four superior court judges, a DeKalb County
district attorney, two assistant district attorneys, and the long-
time former sheriff of the county.
Plaintiffs have been involved for some 20 years in a per-
sonal feud with DeKalb County Superior Court Judge E. T.
Hendon which began with Judge Hendon’s representation of
Mrs. Fitzgerald’s brother when the judge was a practicing law-
nee ae
yer. Through the years the Fitzgeralds’ animosity towards
Judge Hendon spread to his former law partner, Superior Court
Judge Clyde Henley. Former DeKalb County Sheriff Ray Bon-
ner is also a particular enemy of the Fitzgeralds. As a result of
the enmity which they felt towards these three men, the Fitz-
geralds became heavily involved in working for their defeat in
the election of 1976. Plaintiffs distributed leaflets and flyers
accusing the two judges of immoral and illegal acts. Their cam-
paign against Sheriff Bonner was so vigorous that he blamed
the Fitzgeralds for his subsequent defeat.
During the campaign, on September 1, 1976, an officer at
the DeKalb County Police Department received and taped
statements about Sheriff Bonner made by a person identifying
himself as Ernest Billy Fitzgerald. Interpreting the statements
as a threat on his life, Mr. Bonner swore out a warrant against
Mr. Fitzgerald for making terroristic threats against him and
for criminal libel on September 2, 1976. During the evening of
September | and until 2:00 p.m. September. 2, 1976, Mr. Fitz-
gerald was in police custody on a charge of driving under the
influence of alcohol. Sheriff Bonner signed and caused to be
substituted a new set of warrants dated September 3, and it
was not until Saturday, September 4, that Mr. Fitzgerald was
arrested. The effect of this was to prevent Mr. Fitzgerald’s
making bond until after the long Labor Day weekend. On Sep-
tember 7, 1976, a bond of $10,000 was set by Judge Curtis V.
Tillman. Mr. Fitzgerald subsequently filed charges against
Sheriff Bonner for false swearing and tampering with the evi-
dence. The sheriff was, however, never arrested.
During the period the Fitzgeralds were attempting to have
the charges against Mr, Fitzgerald brought to some resolution,
murder charges were pending against former Sheriff Bonner in
DeKalb County. During conversations with the DeKalb County
District Attorney, the Fitzgeralds received the impression that
the resolution of the charges against them depended upon the
outcome of Mr. Bonner’s trial. A preliminary conference was
finally held in the Magistrate’s Court before Judge Tom Moran
in regard to the charges against Mr. Fitzgerald on August 24,
1977. The magistrate also took up at this time Mr. Fitzgerald’s
charges against Mr. Bonner. Following a conference between
on SF
Mr. Bonner’s attorney, Mr. Fitzgerald’s attorney, and Assistant
District Attorney Mike Sheffield, all charges against all parties
were dismissed. Mr. Sheffield indicated that not only did he
believe that all parties were satisfied with the dismissal but
that what Mr. Fitzgerald was charged with doing was not a
crime because the threats were communicated to a third per-
son.
After the dismissals in August, 1977, both Judge Henley
and Judge Hendon discussed the dismissals with District Attor-
ney Peek and indicated that the matter should be presented to
the grand jury even though the charges had been dismissed fol-
lowing the preliminary hearing. The case was presented to the
September-October Grand Jury, which returned a “‘no-bill” on
September 13. The case was re-presented to the November-
December Grand Jury on December 5, 1977, and a true bill
was returned.
At the hearing in this court on January 4, 1978, Mr. Peek
offered three possible explanations for his decision to seek in-
dictments against Mr. Fitzgerald after the preliminary hearing:
(1) that Judge Hendon and Judge Henley asked him to; (2)
that he believed that Mr. Bonner’s attorney was dissatisfied
with the result of the preliminary hearing; (3) that after the
hearing Mr. Fitzgerald had issued more leaflets which were
critical of Judge Hendon, Judge Henley, and Mr. Bonner.
The embracery charge against both Mr. and Mrs. Fitzgerald
grew out of two contacts which Mrs. Fitzgerald had with the
DeKalb County Grand Jury. Mrs. Fitzgerald initially contacted
the July-August Grand Jury to ask that certain matters be in-
vestigated. These matters included the handling of the Ray
Bonner murder trial, the reduction of a murder charge against
Judge Henley’s former son-in-law, which had been reduced to
involuntary manslaughter by Judge Robert Broome, Judge
Hendon’s handling as a lawyer of a number of criminal cases
before Judge Henley, his former law partner, and Judge Hen-
ley’s record of prior criminal convictions. Two members of the
July-August Grand Jury went to the Fitzgerald’s house to in-
vestigate the basis for Mrs. Fitzgerald’s allegations. They came
away convinced that there was some evidence to back up at
least some of the allegations. Several members of the grand
jury were interested in calling a special grand jury to further
—_ oo
investigate the Fitzgeralds’ charges but were discouraged from
doing so after learning that a majority of the superior court
judges would have to concur. At the hearing on January 4 and
5, 1978, Mrs. Gloria Neiswinder, a member of the July-August
Grand Jury, testified that she was one of the two grand jurors
who had gone to the Fitzgeralds’ home. She said that Assistant
District Attorney Wilson had told her to ignore the letters be-
cause the Fitzgeralds were “‘kooks.” At the end of September
she was called in by Mr. Wilson and questioned in regard to the
Fitzgeralds.
The second contact with the grand jury was made by Mrs.
Fitzgerald on September 9 and 10, 1977, after she learned that
the terroristic threats charge would be presented to the Sep-
tember-October Grand Jury. A packet containing a letter, sev-
eral newspaper clippings, a transcript of the August 24 prelim-
inary hearing on the terroristic threats charge, and a copy of
the complaint in a case filed September 6 by Mr. and Mrs. Fitz-
gerald charging Judge Henley, who was presiding over the Sep-
tember-October Grand Jury, with improperly influencing Dis-
trict Attorney Peek with respect to instituting charges against
the Fitzgeralds was mailed to at least 20 grand jurors. The Fitz-
geralds’ daughter, Dawn Moore, helped her mother prepare the
package and draft the letter. Both women and Mr. Fitzgerald
insist that he knew nothing of this contact with the September-
October Grand Jury. There appears to have been a genuine
misunderstanding on the part of Dawn Moore and Assistant
District Attorney Wilson as to what was said in a conversation
which she had with him on September 8, prior to the contact
with the September-October Grand Jury. Mr. Wilson was asked
by Mrs. Moore whether it would be appropriate for her mother
to contact the grand jury. She remembers his, in essence,
authorizing the contact and told her mother that Mr. Wilson
said it ““wouldn’t hurt” to make the contact. Mr. Wilson does
not recall giving permission for the contact and testified that
he told Mrs. Moore that it would be inappropriate. Mrs. Fitz-
gerald also spoke with Mrs. Neiswinder about the propriety of
contacting the September-October Grand Jury. Mrs. Neiswinder
testified at the January 4-5 hearing that she told Mrs. Fitzgerald
that she felt the contact would be proper for Mrs. Fitzgerald
to express her views to the grand jury on the proposed terroris-
— 39 —
tic threats indictments since the district attorney would be
presenting his case to the grand jury.
As discussed above, the September-October Grand Jury
returned a “‘no-bill” in regard to the terroristic threats charge
presented to them after the charges had been dismissed at the
August 24 preliminary hearing. After the “no-bill” was returned,
a decision was made to seek an indictment against both Mr.
and Mrs. Fitzgerald on 20 counts of embracery. How this de-
cision was made is unclear, but again there were conversations
between members of the district attorney’s office and Judge
Henley and Judge Hendon. The November-December Grand
Jury subsequently indicted both Mr. and Mrs. Fitzgerald on 20
counts of embracery on the basis of the letters which Mrs. Fitz-
gerald sent. They were arraigned on the embracery charge on
December 15, 1977, and trial was set for January 3, 1978, at
9:00 a.m. There has been no arraignment on the terroristic
threats indictment. The trial date, being set within a month of
arraignment, and within two months of indictment, was an
unusually early one. Normally, a non-jail case is not heard for
approximately five months after indictment. The trial of the
Fitzgeralds was scheduled to be heard by Judge Broome, one
of the judges who had been a target of the Fitzgeralds’ litera-
ture. There were indications that he planned to recuse himself
but that he intended to call in Judge Blackshear to replace him.
The Fitzgeralds had also been extremely critical of Judge
Blackshear due to his handling of the Ray Bonner murder case.
A final link between Judge Hendon, Judge Henley, and the
Fitzgeralds was forged by plaintiffs’ filing suit against Judge
Henley. When the civil case came up on motion calendar before
Judge Hendon in October, 1977, the Fitzgeralds moved to dis-
qualify all judges in DeKalb County. Judge Hendon refused to
recuse even himself. Mr. Fitzgerald moved to withdraw the
complaint, and the case was finally dismissed with prejudice.
CONCLUSIONS OF LAW
A hearing was held in this court on January 4 and January
5, 1978, on the question whether a preliminary injunction
should be entered in this case. This court having granted a tem-
ae a
-%
porary restraining order on January 2, 1978, the defendant
moved to dismiss the complaint for failure to state a claim upon
which relief can be granted. Defendant bases his motion upon
the principles of law enunciated in Younger v. Harris, 401, U.S.
37 (1971), which establish the very narrow circumstances in
which a federal court may enjoin state court proceedings. De-
fendant urges that the criminal proceedings against the Fitz-
geralds have been brought in good faith, that the Fitzgeralds
have a perfectly good state procedure for testing the prosecu-
tion — a motion to quash the indictments — and that the Fitz-
geralds have an opportunity to vindicate themselves in a single
court proceeding inasmuch as Mr. Fitzgerald has not been
arraigned for the terroristic threats indictment.
As the defendant correctly points out, Younger v. Harris
clearly stands for a fundamental principle of federalism — that
in the absence of extraordinary circumstances a federal court
should not interfere with a state’s exercise of its legitimate in-
terest in prosecuting one who has violated the state’s law. The
Younger Court indicated that only unusual situations would
call forth an exception to the general rule that a federal court
may not enjoin state court proceedings. Generally these are
limited to bad faith prosecution and harassment, but the Court
gave as anexample of other extraordinary circumstances prose-
cution on the basis of a patently unconstitutional statute. 401
U.S. at 53-54. The Court emphasized that the inconvenience
and suffering necessarily incurred by a defendant in a criminal
prosecution does not constitute the great and immediate irrep-
arable injury which would justify federal intervention. /d. at
46. The opportunity to vindicate oneself in a single state court
proceeding is usually adequate protection for the criminal de-
fendant’s federally protected rights. It is only when this protec-
tion for some reason breaks down that the federal court may
intervene. The question before the court is, therefore, not
whether Mr. and Mrs. Fitzgerald should be tried for the crime
of embracery but whether they will have an opportunity to
vindicate themselves through the pending state court proceed-
ing. After long and arduous consideration, this court has con-
cluded that Mr. and Mrs. Fitzgerald may not be able to vindi-
cate themselves in this state court proceeding but are in danger
of multiple prosecutions and other forms of harassment as
=
long as they continue to criticize powerful figures in DeKalb
County.
The United States Court of Appeals for the Fifth Circuit
has specifically held that a finding of bad faith or harassment
is sufficient to establish the irreparable injury necessary for an
injunction. Shaw v. Garrison, 467 F.2d 113, 120 (Sth Cir.),
cert. denied, 409 U.S. 1024 (1972). Although it is clear that
Younger v. Harris restrictions on federal interference do not
apply in a situation involving harassment or bad faith prose-
cutions, the question of what constitutes bad faith is essential
to a resolution of the present matter. It is clear that bad faith
is present in the institution of multiple prosecutions with no
opportunity to vindicate oneself in a single proceeding. Younger
v. Harris, 401 U.S. 37, 49 (1971). Here we have two indict-
ments of one plaintiff which have so far resulted in one crim-
inal prosecution and one indictment of the other plaintiff which
has resulted in one criminal prosecution.
This court initially believed that the action taken against
the Fitzgeralds up to this point constituted the type of prose-
cution that could be resolved in a single state proceeding in
that only one criminal trial against each defendant is actually
scheduled and that in the absence of multiple prosecutions bad
faith could not be found. However, there is some authority
from the United States Court of Appeals for the Fifth Circuit
as to the real meaning of bad faith which has convinced us
otherwise. In Duncan v. Perez, 445 F.2d 557 (Sth Cir.), cert.
denied, 404 U S. 940 (1971), a black man of nineteen was con-
victed of a simple battery as a result of his striking a young
white boy on the arm. His conviction was overturned in Dun-
can v. Louisiana, 391 U.S. 145 (1968), by the United States
Supreme Court on the ground that he had been denied his con-
stitutional right to a trial by jury. Duncan then attempted to
obtain an injunction against the state’s retrying him. The court
affirmed the district court’s finding that the state had no inter-
est in retrying Duncan and that the simple battery prosecution
by the district attorney was in bad faith and for purposes of
harassment. It.seems clear, therefore, that multiple prosecu-
tions are not necessary to finding of bad faith prosecution. In
Shaw v. Garrison, 467 F.2d 113 (Sth Cir. 1972), the court
found that bad faith was shown in the defendant’s prosecution
ao Ns
of Shaw for conspiracy to murder President Kennedy and, fol-
lowing a verdict of not guilty, his prosecuting Shaw for perjury
allegedly committed at the first trial. The district court enjoined
the perjury prosecution under a finding that it was brought in
bad faith and for purposes of harassment. Finding that the dis-
trict court’s finding was not clearly erroneous, the court of
appeals affirmed.
The court has concluded that in the case at hand there is
grave doubt that plaintiffs could vindicate themselves in regard
to the charges against them in a single proceeding. This doubt
is raised by the interference of Judge Henley and Judge Hendon
in the district attorney’s decision whether or not to prosecute.
It is also raised by the fact that Judge Hendon, prior to the
arraignment on December 8, 1977, contacted the Dean of the
Emory Law School concerning the propriety of an Emory pro-
fessor’s representing the plaintiffs. It is raised by Judge Hen-
don’s failure to recuse himself in the Fitzgeralds’ civil action
against Judge Henley. Finally, it is raised by the fact that the
case was scheduled for trial earlier than is usual and was set
before a judge of whom plaintiffs had been critical. When Judge
Broome finally decided to recuse himself, he indicated that he
intended to call in a judge from outside the county. This judge,
who had also had dealings with the Fitzgeralds, was apparently
chosen over other judges within DeKalb County who had had
no previous dealings with the Fitzgeralds. This court is con-
vinced that there exists enough doubt whether plaintiffs can
receive a fair trial which will finally resolve the matter that the
state court proceeding should be enjoined.
The court is persuaded that the prosecution of the Fitz-
geralds has been in bad faith and for purposes of harassment
with the intention of chilling their first amendment rights. It is
thus unnecessary for the court to address the question whether
there is any reasonable expectation of conviction of terroristic
threats under Georgia law. Lanthrip v. State, 235 Ga. 10 (1975).
It is also unnecessary to address the very real question of
whether Mr. Fitzgerald could be convicted on the embracery
charge since it is doubtful whether he knew of Mrs. Fitzgerald’s
communication to the September-October Grand Jury. It is,
finally, unnecessary to address the issue of whether the actions
r
cS OA
7%
of Mrs. Fitzgerald constituted the crime of embracery inasmuch
as there has been no allegation that she intended to bribe or
corrupt the grand jury. Jones vy. State, 101 Ga. App. 851
(1960). Inasmuch as the court has determined that the pending
indictments are infected by the bad faith of defendant, defen-
dant should be and is hereby enjoined from prosecuting plain-
tiffs on these indictments. The clerk is ordered to enter final
judgment for the plaintiffs in this matter.
IT IS SO ORDERED this 22nd day of June, 1978.
WILLIAM C. O’KELLEY
United States District Judge
°%
JUDGMENT ON DECISION BY THE COURT CIV 32 (7-63)
UNITED STATES DISTRICT COURT
For The
Northern District of Georgia — Atlanta Division
Civil Action File No. C77-2074A
Ernest Billy Fitzgerald and 7
Marilyn Fitzgerald
aes JUDGMENT
M. Randall Peek, District Attomey [
of the Stone Mountain Judicial Circuit,
individually and in his official capacity |
This action came on for consideration before the Court,
Honorable William C. O‘Kelley, United States District Judge,
presiding, and the issues having been duly tried (heard) and a
decision having been duly rendered,
It is Ordered and Adjudged that Defendant M. RANDALL
PEEK, District Attorney of Stone Mountain Judicial Circuit,
individually and in his official capacity, is enjoined from prose-
cuting plaintiffs ERNEST BILLY FITZGERALD and MARI-
LYN FITZGERALD on stated indictments; and that plaintiffs
Ernest Billy Fitzgerald and Marilyn Fitzgerald recover of plain-
tiff M. Randall Peek, their costs of action.
Dated at Atlanta, Georgia, this 22nd day of June, 1978.
BEN H. CARTER
FILED AND ENTERED Clerk of Court
IN CLERK'S OFFICE By Sheila Sewell
June 22, 1978
BEN H. CARTER, Clerk Deputy Clerk
By Sheila Sewell
Deputy Clerk
~ me
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ERNEST BILLY FITZGERALD
and
MARILYN FITZGERALD,
Plaintiffs,
vs. CIVIL ACTION
)
)
)
)
)
)
) No. C77-2074A
M. RANDALL PEEK, District )
Attorney of the Stone )
Mountain Judicial Circuit, )
individually and in his ry )
official capacity, )
Defendants )
COMPLAINT
Jurisdiction
1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C,
§ 1331, 1343, 2201, 2202; 42 U.S.C. § 1982; 1988, and the
First and Fourteenth Amendments to the United States Consti-
tution. This is a civil suit seeking to enjoin and redress the de-
privation, under color of state law, of the rights, privileges, and
immunities of plaintiffs under the United States Constitution.
Plaintiffs seek a temporary restraining order, a preliminary in-
junction, a permanent injunction, attorney's fees, and any
other necessary and proper relief. The amount in controversy
exceeds $10,000, exclusive of interests and costs.
Parties
2. Plaintiffs, Ernest Billy Fitzgerald and Marilyn Fitzgerald,
are citizens of the United States and the State of Georgia. They
are husband and wife and reside together at 101 Tree View
Lane, Apartment A, Decatur, Georgia 30034.
ih,
3. Defendant, M. Randall Peek, is the District Attorney for
the Stone Mountain Judicial Circuit which covers DeKalb and
Rockdale Counties in the State of Georgia. In that capacity he
is responsible for presenting potential criminal cases to the
Grand Jury and prosecuting cases in which the Grand Jury re-
turns an indictment.
Facts
4. Mr. Fitzgerald was an extremely vocal and active critic of
former DeKalb County Sheriff Rayburn L. Bonner. Prior to
the Republican Primary of August 10, 1976, in which Mr. Bon-
ner was defeated in his bid for reelection, Mr. Fitzgerald per-
sonally campaigned heavily against Mr. Bonner and distributed
thousands of leaflets that accused Mr. Bonner of dishonesty in
office and improper and illegal behavior in his private life. Mr.
Bonner later claimed that his defeat in the primary was directly
attributable to Mr. Fitzgerald’s efforts.
5. On Thursday, September 2, 1976, while he was still Sher-
iff of DeKalb County, Mr. Bonner swore out a warrant (Exhibit
A) charging Mr. Fitzgerald with making terroristic threats
against him (Georgia Code 26-1307) and with criminal defama-
tion (Georgia Code 26-2804) during the primary campaign,
The terroristic threat supposedly was made during a telephone
call from Mr. Fitzgerald to the DeKalb County Police Depart-
ment on the morning of September 1, 1976. Despite the fact
that Mr. Fitzgerald was in police custody on a charge of driv-
ing under the influence of alcohol from the evening of Sep-
tember I, 1976 until approximately 2:00 p.m. on September 2,
1976, Sheriff Bonner deliberately delayed serving the warrant
on him until approximately 2.00 a.m. on Saturday, September
4, 1976. Due to the timing of the arrest, bond was not set on
the charges until Tuesday, September 7, 1976, after Labor
Day, causing Mr. Fitzgerald to spend more than three days in
jail without being given the opportunity to make bond.
6. Bonner’s charges remained pending against Mr. Fitzgerald
from September 1976 until August 24, 1977, During this time,
Mr. and Mrs. Fitzgerald and their daughter, Dawn Moore, were
assured on several occasions by the defendant that the charges
against him would be dropped as soon as a murder case that
eo
was pending against Mr. Bonner had been resolved. Meanwhile,
Mr. Fitzgerald had sworn out warrants against Mr. Bonner for
false swearing and tampering with the evidence by substituting
a second warrant for the first one sworn out against Mr. Fitz-
gerald (Exhibit B).
7. On August 28, 1977, a preliminary hearing was held before
Judge Tom Moran, Magistrate of DeKalb County, on the charges
pending against Mr. Fitzgerald and Mr. Bonner. The defendant
was represented by Assistant District Attorney, Mike Sheffield.
A transcript was made of this hearing (Exhibit C) which shows
that after a conference participated in by Mr. Sheffield, Judge
Moran, the Attorney for Mr. Bonner, and the Attorney for Mr.
Fitzgerald, it was determined that all pending charges would
be dropped. Mr. Sheffield not only concurred in dropping the
charges, but stated that a conviction on the terroristic threats
charge was not possible because the threats involved had been
made, not to Bonner, but to a third party, and therefore did
not constitute the crime of terroristic threats.
8. Shortly thereafter, Mr. Fitzgerald learned that despite the
preliminary hearing the defendant intended to ask the Septem-
ber-October Grand Jury to return an indictment against him
on the charge of making terroristic threats against Rayburn L.
Bonner. Mr. and Mrs. Fitzgerald confronted the defendant on
or about September 2, 1977, and asked him why he had made
this decision after having promised to dismiss the charge and
after the agreement to dismiss by his assistant at the prelim-
inary hearing. The defendant replied that Superior Court
Judges E. T. Hendon and Clyde Henley had come to him and
told him that the charges against Mr. Fitzgerald should be pre-
sented to the Grand Jury and that he had to honor their
wishes. Mr. Fitzgerald had a long-standing personal dispute
with Judge Hendon, had campaigned vigorously against him in
the 1976 primary and general election; and had distributed
leaflets accusing him of serious personal misconduct. Judge
Henley had been Judge Hendon’s law partner, and Mr. Fitzger-
ald had also campaigned strongly for his opponent in the 1976
judicial election. In addition, the plaintiffs had done substantial
research on the criminal cases which E. T. Hendon, as an attor-
ney, had handled before his former law partner Clyde Henley
38 —
7%
in an effort to show that they had been improperly handled.
They had shown this research to, among others, members of
the July-August Grand Jury.
9. On or about September 8, 1977, the plaintiff's daughter,
Dawn Moore, went to speak with Robert Wilson, the Assistant
District Attorney in charge of dealing with the September-
October Grand Jury. They discussed the charge concerning her
father at some length. Mr. Wilson knew that Mrs. Fitzgerald
had written to an earlier Grand Jury concerning charges that
she thought should be brought against Rayburn L. Bonner and
asked Mrs. Moore whether her mother was going to send
another letter. Mrs. Moore said that she did not know and asked
what he would think about such a letter. Mr. Wilson replied,
“It wouldn’t hurt.”” Mrs. Moore then relayed this message to
her mother. On or about September 9, 1977, a letter with the
transcript of the preliminary hearing and other enclosures
purporting to come from Mrs. Fitzgerald (Exhibit D) was sent
to most of the members of the September-October Grand Jury.
Mr. Fitzgerald did not participate in drafting this letter in any
way and did not know that it was being sent. Shortly there-
after, the Grand Jury returned a “no-bill” on the charge against
Mr. Fitzgerald.
10. On September 6, 1977, Mr. Fitzgerald instituted pro se, a
civil action against Judge Clyde Henley, charging him with im-
properly exercising influence over the defendant to present
charges against Mr. Fitzgerald before the Grand Jury. He dis-
missed this complaint on October 31, 1977, when Judge E. T.
Hendon, who was alleged in the complaint to have participated
in the improper exercise of influence, declined to recuse him-
self from hearing motions in the case.
11. Defendant then asked the November-December Grand
Jury to indict Mr. and Mrs. Fitzgerald on twenty counts of
embracery (Georgia Code 8 26-2407) based solely on the letter
which Mrs. Fitzgerald had supposedly sent to twenty members
of the September-October Grand Jury. The indictments were
returned on November 9, 1977. Shortly thereafter, defendant
asked the Grand Jury a second time to indict Mr. Fitzgerald
for making terroristic threats against Rayburn L. Bonner. The
indictment was returned on or about December 2, 1977.
~~
>
ry
12. On or about December 5, 1977, shortly before Mr. and
Mrs. Fitzgerald were arraigned on the twenty counts of em-
bracery, Judge E. T. Hendon called Dean L. Ray Patterson of
Emory Law School and asked whether Frank P. Samford, III,
one of the attorneys for the plaintiffs, was a full professor at
Emory. When told that Mr. Samford was an Associate Profes-
sor, Judge Hendon asked whether there were any restrictions
on the handling of cases by Emory Law teachers. Judge Hen-
don was not scheduled to arraign the plaintiffs or to try them.
His contact with Dean Patterson had nothing to do with his
duties as a Superior Court Judge.
13. Plaintiffs are now scheduled to be tried on the embracery
counts on January 3, 1978, before Circuit Judge Broome. Judge
Broome is a close friend of Judges Henley and Hendon. In addi-
tion, Mrs. Fitzgerald distributed a flyer that was very critical
of Judge Broome’s handling of a murder charge against Judge
Henley’s former son-in-law and Mr. Fitzgerald in October 1977
made a number of very serious allegations to people working
in the DeKalb County Courthouse regarding Judge Broome’s
prior conduct. Plaintiffs have moved to disqualify Judge
Broome and Bob Wilson, the Assistant District Attorney
scheduled to try the case. They have also moved to dismiss the
charges against them on various grounds including prosecutional
misconduct. However, the motions are scheduled to be heard
at the same time as the trial. Judge Broome has indicated in-
formally that he will disqualify himself, but has not yet entered
an order to that effect. Mr. Fitzgerald has not been arraigned
on the terroristic threats charge, and no trial date has been set.
14. The indictments against plaintiffs were not obtained with
any expectation that valid convictions could be obtained against
them. Defendant is aware of Georgia appellate decisions inter-
preting both statutes which indicate that what the plaintiffs
are alleged to have done would not constitute a crime. Defen-
dant is also aware that the communication to the Grand Jury
which forms the basis for the embracery charge is protected by
the First Amendment as interpreted by the Court in Woods v.
Georgia, 370 V.S. 375, 389-92 (1962). Finally, the defendant
has no evidence connecting Mr. Fitzgerald with the alleged
communication with Grand Jurors and, nevertheless, in bad
a
faith, asked for and received an indictment of him for the
purpose of harassment.
15. The charges against plaintiffs are being prosecuted at the
insistence of two judges of the Superior Court of DeKalb
County who are political enemies of the plaintiffs. The sole
purpose of the prosecution is to punish plaintiff for having ex-
ercised their First Amendment rights in criticizing public offi-
cials in DeKalb County and to deter them from future exercise
of those rights.
Cause of Action
16. Defendant has violated plaintiffs rights under the First
and Fourteenth Amendments to the United States Constitu-
tion by, in bad faith and for purposes of harassment, pressing
charges against ther that he knows cannot form the basis for a
proper conviction. His sole reason for pursuing these charges is
to punish plaintiffs for having exercised their First Amendment
rights and to deter them from future exercise of these rights.
WHEREFORE, the premises considered, plaintiff prays
that this Honorable Court:
1. Assume jurisdiction of this cause and set it down promptly
for a hearing.
2. Pending a hearing of this cause, grant a temporary restrain-
ing order restraining defendant, his successors in office, his
agents and employees, and all other persons acting in concert
with him from prosecuting plaintiffs on the indictments for
embracery and terroristic threats now pending against them.
3. Enter preliminary and permanent injunctions, pursuant to
Rule 65 of the Federal Rules of Civil Procedure, enjoining de-
fendant, his successors in office, his agents and employees, and
all other persons acting in concert with him from prosecuting
plaintiffs on the indictments for embracery and terroristic
threats now pending against plaintiffs.
4. Enter a final judgment declaring that defendant’s prosecu-
tion of plaintiffs on the indictments now pending against them
violates their rights under the First and Fourteenth Amend-
a
ments to the United States Constitution.
5. Tax the costs of this action against defendant.
6. Award plaintiffs attorneys’ fees pursuant to 42 U.S.C. §
1988.
7. Grant any further, different, or alternative relief to which
the plaintiffs may be entitled in the premises.
Respectfully submitted,
Frank P. Samford, II]
Emory Law School
Gambrell Hall
Atlanta, Georgia 30322
Telephone 292-1128
Judith M. Moore
129 Shadowmoor Drive
Decatur, Georgia 30030
Telephone 377-3941
ATTORNEYS FOR PLAINTIFFS
a
VERIFICATION
ERNEST BILLY FITZGERALD, being duly sworn, de-
poses and says that he resides at 101 Tree View Lane, Apart-
ment A, Decatur, Georgia 30034; that he is the plaintiff herein;
that he has read the foregoing complaint and knows the con-
tents thereof and that the same are true of his own knowledge,
except as to matters therein stated to be alleged on informa-
- tion and belief, and as to those matters he believes them to be
true.
s/ Ernest Billy Fitzgerald
SWORN to before me this
30th day of December, 1977.
s/ Bernice B. Byrd
Notary Public
My Commission expires: July 31, 1978.
VERIFICATION
MARILYN FITZGERALD, being duly sworn, deposes and
says that she resides at 101 Tree View Lane, Apartment A,
Decatur, Georgia 30034; that she is the plaintiff herein; that
she has read the foregoing complaint and knows the contents
thereof and that the same are true of her own knowledge, ex-
cept as to matters therein stated to be alleged on information
and belief, and as to those matters she believes them to be true.
s/ Marilyn Fitzgerald
SWORN to before me this
30th day of December, 1977.
s/ Bernice B. Byrd
Notary Public
My Commission expires July 31, 1978.
ay ge
EXHIBIT A
CRIMINAL WARRANT 58767
STATE OF GEORGIA, DEKALB COUNTY:
Personally appeared before the undersigned prosecutor,
who, being sworn on oath says that to the best of his knowlede
and belief, ERNEST BILLY FITZGERALD, Defendant herein,
did commit the offense of terroristic threats and acts (26-1307);
did threaten to commit the crime of murder, a crime of vio-
lence, with the purpose of terrorizing Sheriff Rayburn (Ray) L.
Bonner, in said County on or about September 1, 1976, and
the undersigned prosecutor makes this affidavit that a warrant
may issue for his arrest.
s/ Rayburn L. Bonner
Sworn to and subscribed before me, Sheriff, DeKalb County
this September 2, 1976. Prosecutor
s/ J. E. Kirkland
Clerk, Recorders Court of DeKalb County,
Magistrate Division.
STATE OF GEORGIA, DEKALB COUNTY:
To any Sheriff or his deputy, Coroner, Constable, or
Marshal of said State, GREETING:
For sufficient cause made known to me you are hereby
commanded to arrest the defendant named in the foregoing
affidavit charged by the prosecutor therein with the offense
against the laws of this State named in said affidavit and bring
him before me or some other Judicial officer of this State to
be dealt with as the law directs.
Herein fail not. This September 2, 1976.
s/ J. E. Kirkland
Clerk, Recorders Court of
DeKalb County,
Magistrate Division
a
EXHIBIT B
CRIMINAL WARRANT
STATE OF GEORGIA, DEKALB COUNTY:
Personally appeared the undersigned prosecutor, who, being
sworn on oath, says that to the best of his knowledge and belief
ERNEST BILLY FITZGERALD, W/M, DOB: 1/6/30, Defen-
dant herein, did commit the offense of TERRORISTIC
THREATS AND ACTS, VIOLATION OF GA. CODE SEC:
26-1307, in that the said named Ernest Billy Fitzgerald, did
threaten to commit the crime of murder, a crime of violence,
with the purpose of terrorizing, Sheriff Rayburn (Ray) L.
Bonner, in said County on or about September Ist, 1976, and
the undersigned prosecutor makes this affidavit that a warrant
may issue for his arrest.
s/ Rayburn L. Bonner
Sworn to and subscribed before me, — Sheriff, DeKalb County
Charles W. Smegal, Prosecutor.
Clerk, Recorders Court,
DeKalb County
STATE OF GEORGIA, DEKALB COUNTY:
To any Sheriff or his deputy, Coroner, Constable, or
Marshal of said State, GREETING:
For sufficient cause made known to me you are hereby
commanded to arrest the defendant named in the foregoing
affidavit charged by the prosecutor therein with the offense
against the laws of this State named in said affidavit and bring
him before me or some other Judicial officer of this State to
be dealt with as the law directs.
Herein fail not. This 3rd day of September, 1976.
s/ Charles W. Smegal
Clerk, Recorders Court,
DeKalb County
Magistrate Division
~~
EXHIBIT C
IN THE MAGISTRATES COURT
FOR THE COUNTY OF DEKALB
STATE OF GEORGIA
THE STATE OF GEORGIA ) (Motion to Quash.
) Motion to Dismiss.)
versus )
)
ERNEST BILLY FITZGERALD, )
Defendant )
The transcript of the proceedings pertaining only to the
above-styled case, heard before THE HONORABLE TOM
MORAN, Judge, commencing at approximately 10:05 a.m.,
August 24, 1977, Magistrates Court, 4415 Memorial Drive,
otk Decatur, DeKalb County, Georgia.
APPEARANCES: Mike Sheffield, Esquire
Attorney for the State
James R. Venable, Esquire
Attorney for the Defendant
A. PRICE, NEWBERRY & CO., INC.
General Court Reporters
Suite 1113 Healey Building — 57 Forsyth Street
Atlanta, Georgia 30303
Phone (404! 524-0318
is AE nto
THE COURT: Allright. Mr. Venable, do you have a closing
argument?
MR. VENABLE: No, sir. I don’t care to reply to it, Your
Honor.
THE COURT: All right. For the record I will overrule the
motion to quash and the motion to dismiss Criminal Warrant
Number 58766 and 58767 on each and every ground enumer-
ated therein as statutory authority exists for the creation of
the Recorder’s Court of DeKalb Coynty, which this is, and for
the issuance of warrants by the clerk of that court. Such statu-
tory authority has been upheld by the Supreme Court of the
United States as early as 1969.
Has Mr. Worozbyt come into court yet?
MR. WOROZBYT: May it please the Court.
THE COURT: All right. At this time we will take a five
minute recess. I’d like to see Mr. Worozbyt and Mr. Venable in
chambers.
(Recess. )
THE COURT: At this time the Court will go into the two
criminal warrants, Criminal Warrant Number 58766, Criminal
Warrant Number 58767, which concern the Defendant Ernest
Billy Fitzgerald. Warrant Number 58767 charges the Defen-
dant, Ernest Billy Fitzgerald, with the charge of terroristic
threats and that warrant alleges that on September Ist, 1976
Ernest Billy Fitzgerald did threaten to commit the crime of
murder, a crime of violence, for the purpose of terrorizing
Sheriff Rayburn L. Bonner. Criminal Warrant Number 58766
alleges that on January Ist, 1976 through August 30th, 1976
the Defendant, Ernest Billy Fitzgerald, committed the offense
of criminal defamation in violation of Georgia Code Anno-
tated, 26-2804 and that the named Defendant did without
privilege and with intent to defame Rayburn L. Bonner com-
municate the following false matters, to wit, passing out de-
faming literature which exposed that person to hatred, con-
tempt and ridicule. The State of Georgia is represented by the
Assistant District Attorney, Mr. Sheffield, and the Defendant
is represented by Mr. Venable.
All right. Are there any motions or stipulations in this
ry pee
matter?
MR. VENABLE: I'd like to make a motion on the terror-
istic threats, Your Honor, to dismiss this on the grounds that I
believe the evidence would show that it was made to a third
party and therefore we contend that that would not constitute
an offense of a terroristic threat, that it was not made directly
to the prosecutor, that is, Mr. Bonner, Your Honor.
On the other warrant, I’ve read a great deal of decisions
and I cannot find anything where that would constitute a
crime. I don’t believe it would, Your Honor. It’s too vague, un-
certain and indefinite.
Therefore, we make a motion to dismiss these two warrants
in behalf of Mr. Fitzgerald in the State versus Fitzgerald.
THE COURT: What do you say to that?
MR. SHEFFIELD: Your Honor, the State would concur
with Mr. Venable’s motion as far as the terroristic threat war-
rant. We’ve discussed the case with witnesses and Mr. Venable
is correct. The threats were made to a third party. They were
not made to Mr. Bonner himself. We would concur in this mo-
tion to dismiss that warrant as not constituting the crime of
terroristic threats.
As for the warrant charging Mr. Fitzgerald with criminal
defamation we would concur with Mr. Venable that that more
properly be brought as a civil case.
THE COURT: All right. Mr. Venable, the State has con-
curred with your motion and I will grant the motion to dismiss
Criminal Warrant Number 58767, terroristic threats, violation
of Georgia Code Annotated 26-1307, and Criminal Warrant
Number 58766, criminal defamation. This matter is closed.
(Proceedings concluded. )
3031 Crabapple Circle
Decatur, Georgia 30034
284-9407
September 9, 1977
Ladies and Gentlemen of the Grand Jury:
On September 4, 1976, Labor Day weekend, my husband
was arrested and held until September 7, 1977, with any bond
being denied during his incarceration. The bond, when finally
set on the 7th, was for $10,000.00. And all of this for an
“‘alleged”’ phone call to someone regarding Rayburn L. Bonner.
After almost one year of:
1. asking numerous times for a preliminary bearing,
2. finding and exposing two different sets of warrants for
these charges all having different dates and different judges
issuing them, and,
3. only two days’ notice of a hearing
all charges were dismissed by the State through Judge Tom
Moran, on August 24, 1977. (See attached transcript.)
Also, at this same hearing my husband and his attorney
felt it best to dissolve the matter completely and dropped all
charges against Bonner, which were that of Tampering with
the Evidence and False Swearing. Mr. Bonner was released of
his bail — $500.00 — and my husband was release of his bail —
$10,000.00 — and is not now presently under any charge
whatsoever.
On September 2, 1977, my husband and I were informed
by the District Attorney, Randall Peek, that the ‘‘State’’ was
now going to open up the case and present it to you, the
Grand Jury. When we questioned this, Mr. Peek told us that
Judges Henley and Hendon w ™not satisfied with the de-
cision of Judge Moran and the y- wanted it presented to
you. However, after our suit agai ) Judge Henley was filed on
September 7, 1977, Mr. Peek. d. ee attached Atlanta Con-
stitution clipping datedseptet 'r 8, 1977) that Bonner’s
lawyer, Mr. Worozbyt, denied having agreed to the dismissal,
and that he wanted to further pursue the matter.
If you will, note on pages;9-11 of the enclosed transcript,
age eer)
ed Pe
a
~es
Mr. Worozbyt and Mr. Venable, our attorney, went into the
chambers of Judge Moran, and after this brief meeting, the
actual proceedings took place. A motion was made to dismiss
by our attorney, this was agreed to by the State’s prosecutor,
Assistant District Attorney Sheffield, and the State, through
Judge Moran, closed the case. I’m sure you must see that at no
time in open court did Mr. Worozbyt object to this dismissal.
He, as an officer of the court, had every right and priviledge to
object at that time, but as you can well see, he did not.
Page Two
September 9, 1977
So who is behind the push to open up this case again?
Prior to the date of the incident in question, my husband
outspokenly campaigned against Mr. Bonner, Judge Henley
and Judge Hendon. They often outspokenly expressed their
dislike of my husband, as well. Many things were exposed
about these people to the press, the public, as well as to the
last session of the DeKalb County Grand Jury. There were
even some Grand Jury members present at my husband’s pre-
liminary hearing who cannot now believe what is trying to be
done. I will gladly give you the names of those from the Jury
who were working on the committee regarding my correspon-
dence and allegations about these men, if you so desire.
I humbly ask that you, as Grand Jurors, try to ascertain
for yourselves why this matter is being brought to your atten-
tion. I beg each of you, since we cannot be present to defend
ourselves, to review and weigh all of the evidence carefully be-
fore making your decision. The members of the last Jury
found enough credence about what I have said about these
people to come to my home, as well as to come to the hearing.
All we really want is for justice to be done.
The State arrested my husband. The State incarcerated
him for three and one-half days. The State put him under ex-
cessive bond, in comparison to others even in murder cases,
and held this bond over our heads for almost one year. The
State held a preliminary hearing. And finally, the State dis-
missed the charges to no one’s objection. So, please ask your-
=
self why the “State’’ now wishes to continue this case, when
others so blatantly receive favoritism If the State had felt this
case should go before you, then on August 24, 1977, it would
have ruled so. But the State, through a detached and neutral
judge, ruled “This matter is closed.”’
Thank you very much.
Sincerely,
s/ Mrs. Marilyn M. Fitzgerald
Enclosures
P.S. This letter is being sent to you without the knowledge of
my husband due to mental strain he is now under, and has
been under since September 4, 1976.
a7 Ee
Pd
Loe
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
MARILYN M. FITZGERALD and )
ERNEST BILLY FITZGERALD, )
Plaintiffs, ) CIVIL ACTION
) FILE NO. 77-2246
VS )
) COMPLAINT
CLYDE WESLEY HENLEY, )
Defendant. )
Comes now the plaintiffs in the above styled case and
shows the court the following :
Defendant herein is Clyde Wesley Henley, Superior Court
Judge of DeKalb County, who resides at 4003 Flintridge Drive,
Stone Mountain, Georgia 30083, and that the defendant is
subject to the jurisdiction of the DeKalb Superior Court.
2.
Plaintiffs charge that defendant did with malice, hatred
and personal prejudice, with the aide of Superior Court Judge
E. T. Hendon, impose his will upon the District Attorney of
DeKalb County, Randall Peek, to relate to the plaintiffs on
September 2, 1977, the defendant’s request to take the co-
plaintiff, Ernest Billy Fitzgerald, before the Grand Jury on
charges which were dismissed by Magistrate Tom Moran and
agreed to by the State’s prosecutor, Assistant District Attor-
ney Sheffield, on August 24, 1977, in the Magistrates Court
of DeKalb County.
a
The plaintiffs will show to the court that the defendant
used his position as an elected judicial officer to impose his
will and personal prejudice on the District Attorney due to the
following facts:
= $2 in
a. That plaintiff, Marilyn M. Fitzgerald, sent out informa-
tion to the press, public and other DeKalb County officials
relating to the fact that the defendant set a $5,000.00 bond
for Rayburn L. Bonner within hours after the shooting of
James Timothy Nix. This was done to show to the public that
unjust and undue bond of $10,000.00 was placed upon the co-
plaintiff, Ernest Billy Fitzgerald, for an alleged phone call.
b. That the plaintiff, Marilyn M. Fitzgerald, sent out infor-
mation to the press, public and other DeKalb County officials
relating the fact that accused murderer, Harold Walter Hinton,
was the former son-in-law of the defendant, as well as to point
out the fact that the defendant’s former law partner and for-
mer attorney for Hinton in his divorce proceedings from the
defendant’s daughter, and now Superior Court Judge, E. T.
Hendon, set bond for the accused murderer at $5,000.00.
Thus, showing another parallel between the co-plaintiff’s
bond of $10,000.00 for an alleged phone call and that of an
accused murderer. Shortly after Hinton’s release on bond, he
was arrested by Federal and State authorities in the State of
Alabama on severe drug charges, with the street value of such
drugs amounting to millions of dollars. Because of this drug
arrest, as well as his previous arrest record, Hinton was sen-
tenced to eight years by the State of Alabama and four years
by the Federal Government. On August 31, 1977, an article
appeared in the Atlanta Journal stating that Harold Walter
Hinton was the former son-in-law of the defendant, and that
he pled guilty to a lesser charge of involuntary manslaughter,
and that this lesser plea was accepted by the District Attorney
Randall Peek.
c. That the plaintiff, Marilyn M. Fitzgerald, did on August
9, 1977, send a letter to the DeKalb County Grand Jury asking
for an investigation into the judicial system of DeKalb County,
and more specifically into the activities of Superior Court
Judge Clyde Wesley Henley. She also sent along with her letter
a copy of the defendant’s lengthy police record to show that
he was a convicted felon, as well as to prove that she knew
what she was inferring. Also in her letter, she asked for ar in-
vestigation into the evidence suppressed by Randall Peek, Dis-
trict Attorney, in the State v. Bonner murder trial. Members of
the Grand Jury came to the plaintiffs’ home and were shown
iw =
|
the numbers of cases whereby the defendant’s ex-law partner,
E. T. Hendon, now a DeKalb County Suprior Court Judge, as
well as other attorneys in his firm, brought clients before the
defendant, many for drug related charges, and that deals were
made between the defendant and E. T. Hendon and others, to
have their clients’ charges reduced or totally dismissed. There
was also a tape played to the members of the Grand Jury of a
phone conversation between the co-plaintiff, Ernest Billy Fitz-
gerald, and the defendant, whereby the defendant stated to
the co-plaintiff that he never heard any cases in his courtroom
that were being handled by E. T. Hendon. The Grand Jury was
also presented with other evidence regarding Harold Walter
Hinton in an effort to show that Hinton, with his extensive
arrest record, should not have been put under any bond, and
that he was put under bond only because he was the former
son-in-law of the defendant, and that the defendant invoked
his will upon his friend and ex-law partner, now Superior
Court Judge E. T. Hendon.
4.
Co-plaintiff, Ernest Billy Fitzgerald, was arrested on Sep-
tember 4, 1976, by warrants signed by then Sheriff Rayburn
L. Bonner and was confined to the DeKalb County jail for
almost four days and was denied bond during that time. All
of this occurred because of an alleged phone call. Bond of
$10,000.00 was finally set on September 7, 1976, by Superior
Court Judge Curtis V. Tillman, without any evidence of being
produced of a violation of any State Law. After almost one
year of pleading with the District Attorney, Randall Peek, to
have a preliminary hearing on the matter, and upon only two
days’ notice, a hearing was held in the Magistrates Court of
DeKalb County on August 24, 1977, Magistrate Tom Moran
presiding. All charges against the co-plaintiff, Ernest Billy Fitz-
gerald, were dismissed by Judge Moran, and this was agreed to
in open court by the State’s prosecutor, Assistant District
Attorney Sheffield. The co-plaintiff, Ernest Billy Fitzgerald,
was then released from the $10,000.00 bond under which he
was being held. Rayburn L. Bonner and his attorney Ted
Worozbyt were also present in the courtroom and neither Bon-
ay oe
ner nor Worozbyt made any objections to the co-plaintiff’s
attorney’s motion to dismiss nor to the ruling for dismissal by
Judge Moran. Also at this time, charges by the co-plaintiff,
Ernest Billy Fitzgerald, against Rayburn L. Bonner for False
Swearing and Tampering with Evidence involving two com-
pletely different sets of warrants for the same charge, were
dropped and ruled on by Judge Moran, with no objections by
the co-plaintiff, Ernest Billy Fitzgerald or his attorney, James
R. Venable.
5
Plaintiffs, therefore, charge the defendant with imposing
his personal prejudice and hatred for the co-plaintiff, Ernest
Billy Fitzgerald, upon the District Attorney to subject the
plaintiffs to further humiliation, embarrassment, and harass-
ment, as well as to force the plaintiffs to incur further legal
expenses on a charge that was dismissed on August 24, 1977.
Plaintiffs contend that defendant has a personal vendetta
against one or each of the plaintiffs because of the co-plaintiff’s,
Marilyn M. Fitzgerald, actions as outlined in No. 3 above. And
the plaintiffs further contend that since all of the information
sent out by co-plaintiff, Marilyn M. Fitzgerald, is true, that the
defendant cannot seek legal recourse for slander against her,
and thus, must vent his personal anger and hatred against her
husband, the co-plaintiff, Ernest Billy Fitzgerald.
In the State v. Guhl, 52543, and in Mitchell v. The State et.
vice versa, Ga. App., 140, p. 23, the defendant herein was
shown not to have been detached and neutral, as is the test of
a magistrate. The defendant also was shown and proven to
have discussed with the district attorney and his staff regard-
ing the appellees. The defendant was also shown and proven to
have expressed unfavorable opinions regarding the honesty and
credibility of the appellees. ‘“‘The evidence abundantly autho-
rized the conclusion that Judge Henley had become so affili-
ated with the district attorney’s investigatory and prosecutorial
functions with the special investigative grand jury as to warrant
his disqualification.” Therefore, the plaintiffs conclude that
the defendant, as in the aforementioned case, is acting with
undue authority, personal prejudice and hatred against the co-
plaintiff, Ernest Billy Fitzgerald, and is using the auspices of
= $$
his robe, the district attorney’s office, as well as the entire ju-
dicial system to invoke his own will upon the plaintiffs, causing
them to suffer extreme mental pain and anguish.
WHEREFORE, plaintiffs pray that process issue with ser-
vice upon the defendant as by law provided, and that they
have judgment against the defendant, and that they be awarded
for punitive damages the just sum of TWO MILLION DOL-
LARS ($2,000,000.00), as well as court costs and attorneys
fees. The plaintiffs further pray that:
1. The defendant and/or his agents stop any personal ha-
rassment of the plaintiffs through any part of the judicial sys-
tem of DeKalb County;
2. The defendant be ordered to refrain from imposing his
personal opinions and will upon the district attorney or any
members of the district attorney’s staff,
3. The plaintiffs have a trial by jury;
4. Due to the fact that the defendant is a Superior Court
Judge in DeKalb County, that a change of venue be granted to
the plaintiffs.
s/ Marilyn M. Fitzgerald
Co-Plaintiff
s/ Ernest Billy Fitzgerald
Co-Plaintiff
3031 Crabapple Circle
Decatur, Georgia 30034
284-9407
Sworn to and subscribed before me this
6th day of September, 1977.
s/ Dawn F. Moore
Notary Public
oo MI <a
7%
STATE OF GEORGIA
COUNTY OF DEKALB
Personally appeared before the undersigned attesting
officer, duly authorized by law to administer oaths, MARILYN
M. FITZGERALD, who, after first being sworn, deposes and
says on oath that the facts contained in the foregoing com-
plaint are true.
s/ Marilyn M. Fitzgerald
Sworn to and subscribed before me, this
6th day of September, 1977.
s/ Dawn F. Moore
Notary Public
ee
Ae
STATE OF GEORGIA
COUNTY OF DEKALB
Personally appeared before the undersigned attesting
officer, duly authorized by law to administer oaths, ERNEST
BILLY FITZGERALD, who, after first being sworn, deposes
and says on oath that the facts contained in the foregoing
complaint are true.
s/ Ernest Billy Fitzgerald
Sworn to and subscribed before me, this
6th day of September, 1977.
s/ Dawn F. Moore
Notary Public
sy
-%
DEKALB DEATH BRINGS GUILTY PLEA
The former son-in-law of a DeKalb County Superior Court
judge has pleaded guilty to involuntary manslaughter before
another DeKalb judge.
Harold Walter Hinton, 36, of Lithonia entered the plea
Tuesday before Judge Robert K. Broome in a case involving
the March 2 shooting death of Myra Ellen Richardson, 23, of
Decatur.
Hinton, who Dist. Atty. Randall Peek confirmed was for-
merly the son-in-law of Judge Clyde Henley, was indicted May
17 for murder, court records show.
Peek recommended reduction of the charge to involuntary
manslaughter, which carries a maximum sentence of five years,
because he said the evidence in the case wasn’t strong enough
to support a murder charge.
Hinton told authorities that Ms. Richardson was shot dur-
ing an argument when he and the woman were struggling for a
pistol, Peek said.
Broome accepted the guilty plea and said he would sen-
tence Hinton after a pre-sentence investigation was completed.”
— $8
=
ry%
20 The Atlanta Constitution, Thur., Sept. 8, 1977
JUDGE ACCUSED OF MISCONDUCT
by Emma Edmunds
A Decatur couple has accused DeKalb County Superior
Court Judge Clyde Henley of using his position as an elected
official to impose “his will and personal prejudice” on the
DeKalb district attorney.
Marilyn and Bill Fitzgerald charged in the complaint that
Henley ‘“‘with malice, hatred and personal prejudice,” and the
aid of Superior Court Judge E. T. Hendon, asked that Bill Fitz-
gerald be taken before the grand jury on charges already dis-
missed by Magistrate Tom Moran. The dismissal, they contend,
was agreed to by the state’s prosecutor, Assistant Dist. Atty.
Mike Sheffield, on Aug. 24 in Magistrate’s Court.
Henley had no comment on the complaint filed against
him by the Fitzgeralds, his longtime and vigorous critics.
Dist. Atty. Randall Peek confirmed that the matter, be-
lieved to have been settled in magistrate’s court, was to be
taken to the grand jury but denied that Henley played any
part in the decision.
Peek said the results of the magistrate’s court proceedings —
in which there was no sworn testimony — reportedly have been
questioned by one of the attorneys involved.
Fitzgerald, also a longtime and outspoken opponent of for-
mer DeKalb Sheriff Ray Bonner, had been charged by the for-
mer sheriff with making terroristic threats against his life.
But on Aug. 24, DeKalb Magistrate Tom Moran dismissed
the charges against Fitzgerald, who was accused of calling De-
Kalb Police Chief Dick Hand last year to threaten Bonner’s life.
Peek said he had understood at first that Bonner’s and
Fitzgerald’s attorneys had agreed in a closed meeting with the
magistrate to dismiss several charges, including warrants charg-
ing Fitzgerald with criminal defamation and warrants taken
out by Fitzgerald charging Bonner with false statements and
tampering with evidence.
But according to Peek, Bonner’s attorney, Ted Worozbyt,
—.
ie
later denied having agreed to the dismissal.
Assistant Dist. Atty. Bob Wilson said he had been instruc-
ted “‘to see the case is presented in the very near future, Mon-
day or Tuesday, to the grand jury of DeKalb County.”
CERTIFICATE OF SERVICE
This is to certify that I have this day served counsel for the
opposing party in the foregoing matter with three copies of
this pleading by depositing in the United States Mail three
copies in a properly addressed envelope with adequate postage
thereon.
This 14th day of April, 1981.
erry T. Coles
Attorney for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.