Petition for Writ of Certiorari — Fruhwirth v. Baltimore City Police Department

‘ l FILED

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No. 066i aust |

In The

Supreme Court of the United States

-—

—

October Term, 1991

CHARLES FRUHWIRTH,

Petitioner,

ys

BALTIMORE CITY POLICE DEPARTMENT,

-and-

EDWARD V. WOODS, COMMISSIONER,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

MICHAEL MARSHALL*

HERBERT R. WEINER

SCHLACHMAN, BELSKY & WEINER, P.A.

Attorneys for Petitioner

207 East Redwood Street

9th Floor

Baltimore, Maryland 21202

(301) 685-2022

* Counsel of Record

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mie aime. OC (202) 783-7288*PA (215) 925-6500¢USA (800) 5 APPEAL

QUESTION PRESENTED

Should a federal district court refuse to apply the abstention

doctrine set forth in Younger v. Harris when a police officer lodges

a first amendment challenge to a departmental administrative

disciplinary hearing, in a situation in which the Department has

instituted preliminary formal proceedings, but the accused officer

has no knowledge of these proceedings until the time he seeks

relief in federal court?

ii

TABLE OF CONTENTS

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A FEDERAL DISTRICT COURT SHOULD

REFUSE TO APPLY THE ABSTENTION

DOCTRINE SET FORTH IN YOUNGER V.

HARRIS WHEN A POLICE OFFICER LODGES

A FIRST AMENDMENT CHALLENGE TO A

DEPARTMENTAL ADMINISTRATIVE

DISCIPLINARY HEARING, IN A SITUATION IN

WHICH THE DEPARTMENT HAS INSTITUTED

PRELIMINARY FORMAL PROCEEDINGS, BUT

THE ACCUSED OFFICER HAS NO

KNOWLEDGE OF THESE PROCEEDINGS

UNTIL THE TIME HE SEEKS RELIEF IN

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Contents

Page

A. This Case Is Factually Distinct From Any Case

in Which a Federal Court Has Relied Upon the

Younger Abstention Doctrine to Abstain From

Hearing a Litigant’s Claim and Is Therefore a

Case of First Impression. ................. 5

B. The Decision Below, Holding That It Was

Appropriate for the District Court to Abstain

From Hearing Petitioner’s First Amendment

Challenge to the Department’s Administrative

Disciplinary Hearing, Threatens to Unduiy

Broaden the Abstention Doctrine Set Forth in

Younger v. Harris, and Threatens to Deny

Certain Individuals the Opportunity to Raise

First Amendment Challenges in Federal Court.

Ga he oe ee P 12

TABLE OF CITATIONS

Cases Cited:

Cameron v. Johnson, 390 U.S. 611 (1968) ............ 11, 12

Christ the King Regional High School v. Culvert, 815 F.2d

219 (2nd Cir.), cert. denied, 484 U.S. 830 (1987)

Dombrowksi v. Pfister, 380 U.S. 479 (1965)............ 12

Hawaii Housing Authority v. Midkiff, 467,.U.S. 229 (1984)

iv

Contents

Page

Hotel and Restaurant Emp., Etc. v. Danzinger, 536 F. Supp.

317 (1982), aff'd, 832 F.2d 263 (1987) ............. 11

Middlesex Ethics Committee v. Garden State Bar Ass’n, 457

U.S. Gap Cees sk OUP eT 6, 7,9

Ohio Civil Rights Commission v. Dayton Christian Schools,

477 U.S. 619 (1986) .......... E MARAE on sé vo 8

Telco Communications, Inc. v. Carbaugh, 885 F.2d 1225 (4th

Cir. 1989), cert. denied, 110 S.Ct. 1923 (1990)......

sis DAW Wh clea WEA Rk Sed ek old uke 6, 7, 8, 10, 11

Younger v. Harris, 401 U.S. 37 (1971) ............... passim

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Statutes Cited:

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Contents *

Page

United States Constitution Cited:

SS he cos. sai aches beehexentee passim

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APPENDIX

Appendix A — Unpublished Opinion of the United States

Court of Appeals for the Fourth Circuit Dated April 25,

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Appendix B — Memorandum Opinion and Order of the

United States District Court for the District of Maryland

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No.

=f In The

Supreme Court of the United States

October Term, 1991

CHARLES FRUHWIRTH,

Petitioner,

VS.

BALTIMORE CITY POLICE DEPARTMENT,

-and-

EDWARD V. WOODS, COMMISSIONER,

Respondenis.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

OPINIONS BELOW

On May 25, 1990, the United States District Court for the

District of Maryland entered a memorandum opinion wherein the

court denied petitioner’s Motion for Injunctive Relief and

dismissed his complaint. The memorandum opinion and order

are reproduced at 4a.

On April 25, 1991, the United States Court of Appeals for

the Fourth Circuit issued an unpublished opinion and judgment

affirming the judgment of the United States District Court for

the District of Maryland. The opinion and judgment are

reproduced at la. =

JURISDICTION

The United States Court of Appeals for the Fourth Circuit

entered a judgment affirming the judgment of the United States

District Court for the District of Maryland on April 25, 1991.

This Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§ 1254(1). .

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

U.S. CONST. amend. |

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

U.S. CONST. amend. XIV, § 1

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

cHizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shali abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

tO any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

Petitioner, Charles Fruhwirth, is a police officer employed

by the Baltimore City Police Department. On August 25, 1988,

the Internal Investigation Division (11D) of the Department issued

a report that sustained charges of misconduct against Fruhwirth.

The charges related to an off-duty comment Fruhwirth made to

his wife about the manner in which a Southwest District dispatcher

handled his inquiry regarding a polic> surveillance in the area

of the Fruhwirth home. The comment was inadvertently

transmitted to a departmental dispatcher over Fruhwirth’s speaker

phone, which Fruhwirth thought had been disconnected at the

conclusion of the telephone call. Fruhwirth was served with

departmental charges and notified that a disciplinary hearing would

be set for a later date. The disciplinary hearing was set for

September 12, 1989. At no time prior to August 25, 1988 did

Fruhwirth have any knowledge of the allegations against him,

nor did he know about the investigation conducted by IID. The

Department made no attempt to take a statement from Fruhwirth

at any time during the course of the investigation, or otherwise

notify Fruhwirth of the investigation or pending charges.

On August 17, 1989, Fruhwirth filed a Complaint with the

United States District Court for the District of Maryland seeking

declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201

and 2202, and 42 U.S.C. § 1983. Jurisdiction was conferred by

28 U.S.C. §§ 1331, 1343(a)(3) and (a)(4), and 18 U.S.C. § 401.

No proceedings or other administrative action had occurred in

the intervening year. In his complaint, Fruhwirth alleged, inter

alia, that his expression of disapproval with the manner in which

his emergency telephone call was handled by the Department is

speech constitutionally protected by the First and Fourteenth

Amendments to the United States Constitution. Fruhwirth further

alleged that should the Department be permitted to hold a

disciplinary hearing and discipline Fruhwirth for the lawful exercise

of his constitutionally protected rights, the very conducting of

such a hearing would violate Fruhwirth’s constitutional rights.

On September 14, 1989, the Department filed a motion to

dismiss On grounds unrelated to abstention. Subsequently, on

March 8, 1990, the Department filed a supplemental motion to

dismiss wherein the Department requested the district court to

abstain from hearing Fruhwirth’s claim and to dismiss the

complaint.

A motions hearing was held before the district court on March

16, 1990. On May 25, 1990 the district court dismissed the

complaint based on the abstention doctrine set forth in Younger

v. Harris, 401 U.S. 37 (1971), and its progeny. The district court

held that abstention was appropriate since: (1) there existed an

Ongoing state administrative proceeding, (2) the state proceeding

involved the control and discipline of police officers, an important

State interest; and (3) Fruhwirth could seek judicial review of the

decision rendered by the police administrative board in the state

circuit court, with subsequent appeals available to him within the

state court system.

Fruhwirth filed a timely appeal to the United States Court

of Appeals for the Fourth Circuit. Fruhwirth alleged that the

district court had improperly relied on the abstention doctrine

set forth in Younger, and asserted four arguments in support

thereof: (1) that the action threatened by the Department was

patently unconstitutional; (2) that there were no ongoing state

proceedings; (3) that the state proceedings were not judicial in

nature and would not provide an adequate opportunity for

Fruhwirth to raise constitutional challenges; and (4) that there

was no important state interest involved. The fourth circuit

affirmed the opinion of the district court and held that the lower

court’s determination that leaving the matter in state hands would

serve an important state interest was appropriate.

REASONS FOR GRANTING THE WRIT

A FEDERAL DISTRICT COURT SHOULD REFUSE TO

APPLY THE ABSTENTION DOCTRINE SET FORTH IN

YOUNGER V. HARRIS WHEN A POLICE OFFICER LODGES

A FIRST AMENDMENT CHALLENGE TO A

DEPARTMENTAL ADMINISTRATIVE DISCIPLINARY

HEARING, IN A SITUATION IN WHICH THE

DEPARTMENT HAS INSTITUTED PRELIMINARY

FORMAL PROCEEDINGS, BUT THE ACCUSED OFFICER

HAS NO KNOWLEDGE OF THESE PROCEEDINGS UNTIL

THE TIME HE SEEKS RELIEF IN FEDERAL COURT.

The instant case is factually distinct from any case in which

a federal court has relied upon the abstention doctrine set forth

in Younger v. Harris to abstain from hearing a litigant’s claim.

Further, the decision below, holding that it was appropriate for

the district court to abstain from hearing Fruhwirth’s first

amendment challenge to the departmental administrative

disciplinary hearing, threatens to unduly broaden the abstention

doctrine, and further threatens to deny certain individuals the

opportunity to raise first amendment challenges in federal court.

A. This Case Is Factually Distinct From Any Case in Which a

Federal Court Has Relied Upon the Younger Abstention Doctrine

to Abstain From Hearing a Litigant’s Claim and Is Therefore

a Case of First Impression.

In the decision below, the fourth circuit held that it was

appropriate for the district court to rely on the abstention doctrine

set forth in Younger v. Harris, 401 U.S. 37 (1971), and thereby

abstain from hearing petitioner Fruhwirth’s first amendment

challenge to a Baltimore City Police Department administrative

disciplinary hearing. This Court has previously set forth a three

part analysis to be undertaken in determining whether Younger

abstention is appropriate. First, the court must consider whether

there exists a state proceeding which constitutes an ongoing judicial

proceeding. Next, the court must decide whether the state

proceedings implicate important state interests. Finally, the court

must ascertain whether the state proceedings provide an adequate

opportunity to raise constitutional challenges. See Middlesex Ethics

Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).

It is the first of these three prongs which is of particular

relevance to the instant case. In the decision below, the fourth

circuit affirmed the district court’s determination that the formal

action taken by the Baltimore City Police Department in

conducting an investigation of the allegations asserted against

Officer Fruhwirth amounted to an ongoing state judicial

proceeding. However, the facts of this case are distinct from those

to which the Younger doctrine has been applied. <3

The Court in Younger held that absent extraordinary

circumstances, federal courts should not enjoin pending state

criminal prosecutions. That decision was based primarily on the

notion of ‘‘comity,’’ or the ‘‘proper respect for state functions.”’

Id. at 44. Since the decision in Younger, however, Younger

abstention has been applied to situations in which federal claims

‘*have or could be presented in ongoing state judicial proceedings

that concern important state interests.’’ Telco Communications,

Inc. v. Carbaugh, 885 F.2d 1225, 1228 (4th Cir. 1989), cert. denied,

110 S.Ct. 1923 (1990), citing Hawaii Housing Authority v. Midkiff,

467 U.S. 229, 237-38 (1984) and Middlesex County Ethics

Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432-437

(1982).

The issue in Telco Communications, Inc. v. Carbaugh was

whether the Younger doctrine should apply to a particular civil

administrative proceeding. The Virginia Office of Consumer

Affairs (OCA) had advised Telco that it was investigating the

plaintiff’s fundraising activities in Virginia pursuant to a complaint

it had received. /d. at 1227. Telco filed suit in the Eastern District

of Virginia seeking to enjoin the OCA from enforcing certain

provisions of the Virginia charitable solicitation laws. /d. The

defendant requested the district court to abstain from exercising

jurisdiction because of the ongoing state administrative proceedings

against Telco. The district court denied the defendant’s motion.

Id. The fourth circuit found that Telco’s action did not disrupt

any Ongoing state proceeding, and therefore the district court

properly exercised jurisdiction in hearing Telco’s constitutional

challenge. /d. at 1228-30.

At first glance, it is arguable that the Baltimore City Police

Department, by virtue of the formal investigation conducted by

11D, had initiated formal proceedings with regard to the complaint

filed against Officer Fruhwirth, and therefore, the decision in

Telco, holding that abstention was inappropriate where there was

no ongoing state proceeding, is inapplicable. However this case

is factually similar to 7e/co in that, even though the Department

had undertaken formal investigative proceedings, it had not yet

held the formal disciplinary hearing. The 7Je/co court held that

‘the period between the threat of enforcement and the onset of

formal enforcement proceedings may be an appropriate time for

a litigant to bring its First Amendment challenges in federal court.”’

Id. at 1229. What remains unclear, however, is exactly what

constitutes ‘‘formal enforcement proceedings.”’

The instant case may again be distinguished from Telco in

that Telco, once it learned that the OCA was investigating its

activities, requested a meeting with OCA, pursuant to which an

‘* ‘informal fact-finding conference’ ’’ was held. /d. at 1228. The

Telco court found abstention inappropriate because this conference

was not a ‘‘formal hearing in conformance with the

Commonwealth’s Administrative Process Act... ’’ /d. at 1228.

In light of the policy behind abstention generally, however,

the instant case actually may present a more compelling situation

for exercising jurisdiction than Te/co. Not only was Fruhwirth

excluded from the Department’s fact-finding process, but he was

also denied any knowledge of the allegations against him.

Fruhwirth was not aware of the allegations asserted against him,

or of the investigation conducted by IID, until the time he was

served with departmental charges. Prior to any further

administrative action, Fruhwirth sought injunctive relief in federal

court. There were no informal discussions, as in TJe/co, let alone

any formal proceedings.

This is not a situation where an accused simply finds himseif

disenchanted with ongoing state proceedings and seeks to have

the. federal courts intervene to rescue him. Rather, this is a situation

where a litigant seeks to challenge the very existence of the

administrative action on first amendment grounds, and seeks that

opportunity prior to the onset of that action. However, in those

cases in which federal courts have determined that, by virtue of

ongoing state proceedings, Younger abstention is appropriate, the

accused party sought relief in federal court only after becoming

aware of the initiation of state proceedings, if not participating

therein.

For example, in Ohio Civil Rights Commission v. Dayton

Christian Schools, 477 U.S. 619 (1986), the Supreme Court found

abstention proper where the accused brought suit in federal court

after the Ohio Civil Rights Commission had initiated formal

administrative proceedings. /d. at 2722-24. However, prior to the

)

initiation of these proceedings, the Commission had warned

Dayton that failure to accede to a proposed Conciliation

Agreement and Consent Order, or, in the alternative, to submit

an acceptable counteroffer, would result in the Commission’s

initiation of formal proceedings. Fruhwirth, on the other hand,

had absolutely no knowledge of the formal investigative

proceedings conducted by IID until the Department decided to

file charges against him.

The facts in Middlesex County Ethics Committee v. Garden

State Bar Ass’n, 457 U.S. 423 (1982), offer another example. In

Middlesex, the court abstained where it found that an attorney,

prior to the commencement of federal action, had been served

with a detailed formal statement of charges for which he was

required to file an answer within ten days. /d. at 2524. The accused

attorney, however, received a letter from the Ethics Committee

at the onset of the investigation, and therefore he was aware that

the Committee was investigating allegations against him. In the

instant case, the Department took no steps to advise Fruhwirth

that a complaint had been filed against him, or that an

investigation was underway. Likewise, in Christ the King Regional

High School v. Culvert, 815 F.2d 219 (2nd Cir.), cert. denied,

484 U.S. 830 (1987), the appellant, prior to seeking an !njunction

in federal court, was served with a complaint and filed an answer

in response. In the instant case, Fruhwirth took no steps to further

the state proceeding. Fruhwirth was in no way involved in the

departmental investigation, nor did he express his position to the

Department at any time. In fact, the Department did not even

take a statement from Fruhwirth.

The applicability of the abstention doctrine in the instant

case cannot be measured by Younger and its progeny. The

investigation conducted by IID arguably constitutes an ongoing

state proceeding. That notwithstanding, Officer Fruhwirth had

no knowledge of this proceeding. If a state agency is allowed to

10

keep silent as to its investigation and preparation of charges in

an effort to avoid federal court review, then the abstention doctrine

may take on a function not intended by the courts. The

applicability of the Younger doctrine to a situation where there

exists a unilateral state proceeding has not yet been adjudicated.

This is a case of first impression, the facts of which strongly urge

this Court to set forth a new analysis.

B. The Decision Below, Holding That It Was Appropriate for the

District Court to Abstain From Hearing Petitioner’s First

Amendment Challenge to the Department’s Administrative

Disciplinary Hearing, Threatens to Unduly Broaden the Abstentien

Doctrine Set Forth in Younger v. Harris, and Threatens to Deny

Certain Individuals the Opportunity to Raise First Amendment

Challenges in Federal Court.

In Jelco, the fourth circuit expressed concern as to the

continuing expansion of the Younger abstention doctrine:

The doctrine of Younger abstention has progressed

over the past two decades to protect state criminal

proceedings ... state civil cases ... and state

administrative process . . . from premature federal

interference. To follow the doctrine, however, as

one would a pied piper, is to forsake the Supreme

Court’s rulings on constitutional rights.

Telco, 885 F.2d at 1230. The Te/co court, while acknowledging

the importance of state interests, found that the strength of those

interests would be respected by any court assessing a plaintiff’s

constitutional claims. /d. at 1229. As a result, the 7e/co court

held that the period between the threat of enforcement and the

onset of formal enforcement proceedings may be an appropriate

time for a litigant to bring his first amendment challenges in federal

court. /d. The accuracy of this analysis has never been addressed

by the Supreme Court.

11

In the instant case, considering that the couris below have

deemed that the investigation conducted by IID amounts to an

ongoing state judicial proceeding, there existed no period between

the threat of enforcement and the onset of formal enforcement

proceedings, as in 7e/co. Fruhwirth received notice of the onset

of formal enforcement proceedings at the same time he received

notice of the threat of such proceedings. That is, it was not until

the time at which departmental charges were served upon

Fruhwirth that he had knowledge that the threat of enforcement

existed.

The fourth circuit has held that Fruhwirth has absolutely no

right to assert a first amendm_nt challenge in federal court. Te/co

suggests that, had Fruhwirth been advised that departmental

charges were pending, that is, that enforcement proceedings were

threatened, he could have filed a federal claim. However, the

decision below leaves Fruhwirth with no such opportunity.

Fruhwirth filed in federal court at the first opportunity available

to him. This opportunity did not arise, however, until after the

Department had initiated formal proceedings, and after the period

of threatened enforcement had expired. Because Telco is not a

decision of this Court, guidance and clarification by this Court

as to the appropriate standard in a case such as this is warranted.

Unless this Court sets forth a clearer standard, one that is

applicable to situations such as the instant case where there is

no period of threatened enforcement proceedings, federal courts

will be free to abstain in virtually any case as long as the state

has instituted some type of formal proceeding. If this is the case,

individuals such as Fruhwirth will be denied the opportunity to

assert first amendment challenges in federal court. This Court

has held that abstention is particularly inappropriate where the

plaintiff has alleged a violation of his first amendment freedoms.

Hotel and Restaurant Emp., Etc. v. Danzinger, 536 F. Supp. 317

(1982), aff'd, 832 F.2d 263 (1987), citing Cameron v. Johnson,

12

390 U.S. 611 (1968); Zwickler v. Koota, 389 U.S. 241 (1967);

Dombrowksi v. Pfister, 380 U.S. 479 (1965). Abstention in this

case completely denies Fruhwirth the opportunity to assert a first

amendment challenge in federal court.

CONCLUSION

For the foregoing reasons, the petitioner Charles Fruhwirth

respectfully requests that a writ of certiorari be issued to review

the opinion of the fourth circuit.

Respectfully submitted,

MICHAEL MARSHALL

HERBERT R. WEINER

SCHLACHMAN, BELSKY &

WEINER, P.A.

Attorneys for Petitioner

3

la

APPENDIX A — UNPUBLISHED OPINION OF THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH

CIRCUIT DATED APRIL 25, 1991

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 90-1495

CHARLES FRUHWIRTH,

Plaintiff-Appellant,

versus

BALTIMORE CITY POLICE DEPARTMENT; EDWARD V.

WOODS, Commissioner,

Defendants-Appellees.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Marvin J. Garbis, District Judge.

(CA-89-2359-MJG)

Argued: March 5, 1991 Decided: April 25, 1991

Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and

BRITT, United States District Judge for the Eastern District of

North Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Michael Lawrence Marshall, SCHLACHMAN,

BELSKY AND WEINER, P.A., Baltimore, Maryland, for

Appellant. William Rowe Phelan, Jr., Senior Solicitor,

2a

Appendix A

DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees.

ON BRIEF: Herbert R. Weiner, SCHLACHMAN, BELSKY

AND WEINER, P.A., Baltimore, Maryland, for Appellant. Neal

M. Janey, City Solicitor, DEPARTMENT OF LAW, Baltimore,

Maryland, for Appeliees.

Unpublished opinions are not binding precedent in this circuit.

See 1.0.P. 36.5 and 36.6.

PER CURIAM:

The plaintiff-appellant, Charles Fruhwirth, a Baltimore City

police officer, seeks to enjoin a hearing on disciplinary charges

lodged against him following a telephone conversation which he

had initiated. The call was to the dispatcher at the Southwest

District of the Baltimore City police department. Fruhwirth, feeling

the dispatcher was unhelpful, and also thinking that he had

terminated the call, had unburdened himself of remarks about

the dispatcher. Actually, the line remained open and Fruhwirth

was Overheard and recorded by the dispatcher. He used one

scatological term, and suggested, in crude, uncomplimentary terms,

that the dispatcher was of African origin.

District Judge Marvin J. Garbis, in a succinct yet

comprehensive opinion, and despite cries that First Amendment

Constitutional guarantees of the exercise of the rights of free speech

were being punished, has applied the doctrine of Younger v.

Harris, 401 U.S. 37 (1971), to abstain from granting the requested

injunctive relief. He felt it preferable to leave the matter to state

administrative and judicial proceedings.

We affirm the opinion of the district court, FruAwirth v.

Baltimore City Police Dep’t, No. 89-2359 (D. Md., May 25, 1990),

3a

Appendix A

wherein it is observed that leaving the matter in state hands would

serve ‘‘an important state interest.’’ That avoided, on behalf of

comity, the resolution of the tangled question of whether

Fruhwirth’s case presents one of those relatively rare occasions

when ‘‘free speech’’ may be foo free to merit constitutional

protection (e.g., the false cry of ‘‘Fire’’ in a crowded theatre).

The judgment is accordingly

AFFIRMED.

4a

APPENDIX B — MEMORANDUM OPINION AND ORDER

OF THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MARYLAND DATED MAY 25, 1990

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CIVIL NO. MJG-89-2359

CHARLES FRUHWIRTH

Plaintiff

VS.

BALTIMORE CITY POLICE DEPT., et al.

Defendants

MEMORANDUM OPINION

Plaintiff, Charles Fruhwirth, an officer of the Baltimore City

Police Department, seeks to enjoin the Department and its

Commissioner from conducting an administrative hearing

regarding disciplinary charges made against him, and he further

asks the Court to order the dismissal of those charges. Plaintiff

alleges that the Defendants are denying him his rights guaranteed

by the United States Constitution and by the Maryland ‘‘Law

Enforcement Officers’ Bill of Rights,’’ codified at Md. Ann. Code

art. 27, § 727 et seq. (1988). Plaintiff has moved for a Preliminary

Injunction and Temporary Restraining Order, and Defendants

have filed a Motion to Dismiss.

In his Complaint, Plaintiff alleges that the Department’s

charges relate to a telephone conversation which took place on

ia}

Sa

Appendix B

August 12, 1988.' Plaintiff, while at home and off duty, was

informed by his wife that police cars had been in the area of his

home shining spotlights into the house and backyard. Plaintiff

called the Southwestern District dispatcher to determine why this

was occurring and possibly to offer assistance. The dispatcher

on duty, apparently from the Complaint a black woman, did not

indicate that the conversation was being recorded by the

Department’s phone system, although it is customary for such

an indication to be made at the outset of a call. After the dispatcher

told Plaintiff that she could not help him, Plaintiff believed that

the conversation was complete and hung up his telephone receiver.

Unknown to the Plaintiff, his speaker phone was still on and the

dispatcher remained on the line. At least twenty seconds after

hanging up the receiver, Plaintiff expressed to his wife his outrage

at the manner in which his call had been handled by the dispatcher.

Among the words used was reference to a sexual act and a racial

epithet. Plaintiff was not aware that his statements were audible

to the dispatcher and were being recorded. The next day, the

dispatcher filed a complaint against Plaintiff with the Department’s

Internal Investigation Division (‘‘1ID’’) for the use of profanity

and racial slurs. On August 25, 1988 the IID issued a report which

sustained misconduct charges against Plaintiff. Absent relief from

the Gourt, a trial-type board hearing will be held, after which

Plaintiff may be subjected to disciplinary action by the Police

Commissioner.

Plaintiff contends that this Court should enjoin the Baltimore

City Police Department from conducting the trial board hearing

in this matter. Plaintiff claims that the administrative proceeding

involves an action under color of state law which would deprive

1. For purposes of this Motion all allegations in the Complaint are assumed

to be true.

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Appendix B

him of constitutionally protected rights, an action which would

entitle him to relief in this Court under 42 U.S.C. § 1983. In

essence, Plaintiff contends that there is a substantial likelihood

that the statements overheard by the dispatcher are subject to

constitutional protection and that he cannot legally be punished

for the exercise of his right to free speech.

Initially, this court must determine whether it can, and should,

exercise jurisdiction to hear the case. The principal issue is whether

this Court should abstain from exercising jurisdiction under the

doctrine originally announced by the Supreme Court in Younger

v. Harris, 401 U.S. 37 (1971). As noted in Telco Communications,

Inc. v. Carbaugh, 885 F.2d 1225 (4th Cir. 1989):

Under Younger v. Harris, 401 U.S. 37 (1971),

federal courts should abstain ‘‘whenever federal

claims have been or could be presented in ongoing

State judicial proceedings that concern important

State interests.”” Hawaii Housing Authority v.

Midkiff, 467 U.S. 229, 237-38 (1984); Middlesex

County Ethics Committee v. Garden State Bar

Ass’n, 457 U.S. 423, 432-37 (1982). Important to

Younger abstention is the existence of an ongoing

State proceeding. If such a proceeding exists,

‘*reinstituting the action in the federal courts’’ is

impermissible; indeed to do so would involve 2

loss of time and duplication of effort. Wulp v.

Corcoran, 454 F.2d 826, 831 (1st Cir. 1972).

Id. at 1228. Although the circumstances in Je/co did not warrant

abstention because there was no pending state proceeding, here

an Ongoing state administrative proceeding is being delayed by

this case.

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Appendix B

As stated recently by Judge Walter E. Black, Jr. of this Court

in Chesapeake B & M, Inc. v. Cassilly, 729 F. Supp. 1106 (D.

Md. 1990):

Younger and its progeny ‘‘espouse a strong policy

against federal-court interference with pending

state judicial proceedings absent extraordinary

circumstances.’’ Middlesex County Ethics Comm.,

457 U.S. at 431. This policy is based upon notions

of comity which include proper respect for state

functions and ‘‘the belief that the National

Government will fare best if the States and their

institutions are left free to perform their separate

functions in their separate ways.’’ /d. at 431.

Id. at 1108. Although Younger originally addressed abstention

from state criminal proceedings, Younger abstention has

subsequently been extended to state administrative and disciplinary

proceedings. See, e.g., Middlesex County Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423 (1982) (state bar disciplinary

proceedings); Ohio Civil Rights Commission v. Dayton Christian

Schools, 106 S. Ct. 2718 (1986) (sex discrimination proceeding

before the Ohio Civil Rights Commission).

Applying Ohio Civil Rights Commission v. Dayton Christian

Schools, the Second Circuit articulated three questions that must

be resolved to determine if abstention is proper: ‘‘(1) whether

there is an ongoing state proceeding; (2) whether an importont

state interest is involved; and (3) whether the federal plaintiff has

an adequate opportunity for judicial review of his constitutional

claims during or after the proceeding.’’ Christ the King Regional

High School v. Culvert, 815 F.2d 219, 224 (2d Cir. 1987). In this

case, a State administrative proceeding is ongoing, and it involves

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Appendix B

an important state interest, the control and discipline of police

officers. Finally, judicial review of a decision of a police

administrative panel is available in the Circuit Court, pursuant

to Md. Ann. Code art. 27 § 732 (1988), with subsequent appeals

available within the state court system. These courts are certainly

well able to hear and decide any constitutional claims that may

arise during the administrative proceeding.

The interference of the United States District Court with this

administrative process appears totally unjustified. While the matter

is certainly important to the Department and to Mr. Fruhwirth,

it does not raise issues which would justify this Court’s blocking

the established administrative procedure and subsequent review

by the Maryland state courts. This Court emphasizes that it is

making no comment whatsoever on the merits of Mr. Fruhwirth’s

First Amendment claim. In this Court’s view, that is a matter

which should first be considered by the administrative trial board

and, if appropriate, by the Maryland courts.

For the reasons stated above, the Plaintiff’s motions for

injunctive relief will be denied and the Complaint in this action

will be dismissed by separate Order.

s/ Marvin J. Garbis

__ Marvin J. Garbis

United States District Judge

Date: May 25, 1990

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Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CIVIL NO. MJG-89-2359

CHARLES FRUHWIRTH

Plainuff

VS.

BALTIMORE CITY POLICE DEPT., et al.

Defendants

ORDER

For the reasons set forth in the Memorandum Opinion filed

this date:

1. Plaintiff's Motion for Preliminary Injunction and

Temporary Restraining Order is hereby DENIED.

2. Defendants’ Motion to Dismiss is GRANTED.

3. Judgment is hereby entered for the Defendants and against

the Plaintiff, with costs.

4. The Clerk shall mail a copy of this Order and the

accompanying Memorandum Opinion forthwith to counsel of

record.

SO ORDERED this 25th day of May, 1990.

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Appendix B

s/ Marvin J. Garbis

Marvin J. Garbis

United States District Judge