# Petition — Peek v. Fitzgerald > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1616%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 916 ## 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