Petition for Writ of Certiorari — Tesch v. McCurry

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84-8977 [TT ED

DEC $ 1984

TR ee. ALEXANDER L STEWAS,

CLERK

—————_

In The

Supreme Court of the United States

October Term, 1984

FRED TESCH, et al.,

Petitioners,

Vs.

ROBERT FE. McCURRY, et al.,

Respondents.

©)

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Pavut L. Doveias

Attorney General of Nebraska

Harotp MosHer

Assistant Attorney General

2115 State Capitol

Lineoln, Nebraska 68509-4906

(402) 471-2682

Jerry W. KaTsSKEE

AND Mitton A. KaTsKEE

oF Katskee & Henatscu

430 Plaza of the Americas

7171 Merey Road

Omaha, Nebraska 68106

(492) 391-1697

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

Whether Respondents satisfied the actual case or

controversy prerequisite for declaratory and injunc-

tive relief where the state court order in question

was suspended nearly two months before the filing of

this action and where there was no claim of continu-

ing present adverse effects?

Whether law enforcement officers who carry out the

facially valid orders of a judge are absolutely immune

from claims for damages, declaratory and injunctive

relief arising from such actions?

Whether prosecutors are absolutely immune from the

claims for damages, declaratory and injunctive relief

in this action?

Whether a_ political subdivision may be subject to

damages, declaratory or injunctive relief where the

complaint alleges no action, custom, or policy by the

political subdivision which deprived plaintiffs of their

rights under the Constitution and laws?

Whether declaratory or injunctive relief may be en-

tered by a federal court which would interfere with a

prior, continuing state court contempt proceeding in

which the interest of the defendants are closely inter-

twined with the interests of the plaintiffs in the fed-

eral proceeding?

Whether the opinion of the Court of Appeals for the

Eighth Cireuit directing entry of a declaratory judg-

ment constitutes so great a departure from the

usual course of judicial proceedings as to call for an

exercise of this Court’s power of supervision?

LIST OF PARTIES

FRED TESCH, in his official capacity as Sheriff of Cass

County, Nebraska, and individually; LARRY SHEL-

BOURN, in his official capacity as Chief Deputy Sheriff

of Cass County, Nebraska, and indivicually; RAYMOND

SYSLO, in his official capacity as a Captain of the Ne-

braska State Patrol, and individually; RONALD D. MOR-

AVEC, in his official capacity as Cass County Attorney ;

PAU L L. DOUGLAS, in his official capacity as Attorney

General of Nebraska, and the COUNTY OF CASS, NE-

BRASKA,

Petitioners,

vs.

ROBERT E. McCURRY, H. EDWARD ROWE, RICH-

ARD C. MOORE, GREG DIXON, DENNIS BROWN,

ROBERT A. COLLINS, RICHARD L. WEIGHTMAN,

DENNIS A. CORLE, DANIEL EYLAR, DAVID A. EY-

LAR, CARROLL L. TORBERSON, CARLTON CURTIS,

MARK A. BILBREY, OLIN R. ‘ADAMS, BILLY AR-

NOLD, KENYON PAUL HANEY, MICHAEL S. BACK-

AAUS, BILL G. BREWER, PRICE BROWN, RICHARD

A. CLOYED, JOHN W. CURTIS, CHARLES DAY,

JESSE DAY, STEPHEN L. FERGUSON, J. MICHAEL

GIBBS, EARL HARGIS, ALLEN R. KINCAID, FRAN-

CIS J. KUHLMAN, LARRY L. LAUTARET, CARL W.

LAURENT, DAVID H. LYDICK, RICHARD MAY,

GEORGE F. MONDAY, GERALD L. POPE, ERIC L.

RIST, PHILIP A. SCHMIDT, TUNIS SCHURMAN,

CLIFFORD SIMS, DENNIS A. SIMS, HARRY R.

SMITH, DALE L. SPEAR, EDWARD L. THIBO-

DEAUX, RONALD L. TOTTINGHAM, GARY J. UIT DE

FLESCH. LESLIE A. WARREN, JERRY WEST, GARY

H. WILLIAMS, SAMUEL L. WOODRt UFF, DENNIS E.

FOUNTAIN, CARL SPENCER, JR., HARVEY SCHULZ,

GARY LEE PETERSON, RALPH H. LILES, MICHAEL

McKINNEY, ALFRED J. RILEY, DALE K. DYKEMA,

BRANDON DYKEMA, HOWARD QUINLAN, ROBERT

MUNCASTER, GARY LEE ASHFORD, H. LYNN BOW-

EN, RICHARD GREGORY, MICHAEL WOLFRAM,

HERBERT LAWSON, PHILLIP LILES, JEAN PER-

RY, and DAVID FRANK WALKER,

Respondents.

iil

TABLE OF CONTENTS

Questions Presented i

tee eee es i ii

Opinions Below occ i : ee

Jurisdiction ... ; AGATA RT 2

Constitutions and Statute SFB Me eae Se 2

Statement of the Case 0. Sexe Te Rr 2

Reasons for Granting the Petition 10

Conclusion .... Sh A AR PD eR ra Oe ee ee 29

Ee ee

Nc ema 6a

Se che .. 8a

EEE SL er.

SESE . 23a

TA 24a

aS AI a RC 4la

EES

ITI SLE 43a

TABLE OF AUTHORITIES

CASES:

Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir. 1980) .... 14

Baker v. Carr, 369 U.S. 186 (1962) 10

Baker v. McCollan, 443 U.S. 137 (1979) 20

Blouin v. Dembitz, 367 F.Supp. 415 (S.D.N.Y. 1973),

aff'd, 489 F.2d 488 (2nd Cir. 1973) 15

TABLE OF AUTHORITIES—Continued

Page

Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970) —...... 15

City of Los Angeles v. Lyons, — U.S. —, 103 S.Ct.

1660, 75 L.Ed.2d 675 (1983) 14

District of Columbia Court of Appeals v. Feldman,

— US. —, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) ....6, 26

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) 0... 22

Duba v. McIntyre, 501 F.2d 590 (8th Cir. 1974), cert.

den., 424 U.S. 975 (1976) 15

Faith Baptist Church v. Nebraska, 454 U.S. 803

(1981) 3, 12, 21, 23

Flast v. Cohen, 393 U.S. 83 (1968) 10

Fountain v. Filson, 336 U.S. 681 (1949) neces eeeeee 27

Fowler v. Alexander, 478 F.2d 694 (4th Cir. 1973) ...... 15

Golden v. Zwickler, 394 U.S. 108 (1969) 0000... 11, 12, 14

Harlow v. Fitzgerald, 457 U.S. 800 (1982). 17, 18

Hevelone v. Thomas, 423 F.Supp. 7 (D. Neb. 1976),

aff'd, 546 F.2d 797 (8th Cir. 1976) 6, 15

Hicks v. Miranda, 422 U.S. 332 (1975) 22

Imbler v. Pachtman, 424 U.S. 409 (1976) —W-. 6, 9,19

Jenkins v. McKeithen, 395 U.S. 411 (1969) .

Juidice v. Vail, 430 U.S. 327 (1977) wy 20

Liles, In re, 217 Neb. 414, 349 N.W.2d 377 (1984) ........... 22

Nebraska v. Faith Baptist Church, 207 Neb. 802, 301

N.W.2d 571 (1981) 3, 12, 14, 21, 23

Nebraska v. Faith Baptist Church, No. 81-726 (Neb.

Sup. Ct. 1982) +

TABLE OF AUTHORITIES—Continued

Page

O’Shea v. Littleton, 414 U.S. 488 (1974) ou. 11, 12, 14

Pierson v. Ray, 386 U.S. 547 (1967) . 14

Prettyman v. Nebraska County of Cass, 437 F.Supp.

Fe ee GEE etitntinaceinnndet ema a 20

Pulliam v. Allen, — U.S. —, 104 S.Ct. 1970, 80 L.Ed.

2d 565 (1984) 27

Rhodes v. Houston, 202 F.Supp. 624 (D. Neb. 1962),

aff'd, 309 F.2d 959 (8th Cir. 1962), cert. den., 372

U.S. 909 (1963), cert. den., 383 U.S. 971 (1966) .....6, 16, 19

Schad v. Borough of Mount Ephriam, 452 U.S. 61

FRIED. cititineneaboisaceuean 8

Sileven v. Tesch, 212 Neb. 880, 326 N.W.2d 850 (1982) 4, 24

Slotnick v. Garfinkle, 632 F.2d 163 (1st Cir. 1980) 14

Spaulding v. Nielsen, 599 F.2d 728 (5th Cir. 1979) ...10, 15

Stump v. Sparkman, 435 U.S. 349 (1978) oo eecnnneone 9,14

Trinsey v. Pagliaro, 229 F.Supp. 647 (E.D. Pa. 1964) 28

Tymniak v. Omodt, 676 F.2d 306 (Sth Cir. 1982) 9,15

United Public Workers v. Mitchell, 330 U.S. 75 (1947) 11

U.S. v. Leon, — U.S. —, 104 S.Ct. 3405 (1984) 18

Walker v. City of Birmingham, 388 U.S. 307 (1967) ..... 7

White v. Bloom, 621 F.2d 276 (8th Cir. 1980) 0. 6,19

Younger v. Harris, 401 U.S. 37 (1971) 7, 20, 22

OTHER AUTHORITIES:

Constitution, Article IIT 2,10, 14

Constitution, First Amendment ...... 2

28 U.S.C. § 1254 2

TABLE OF AUTHORITIES—Continued

Page

28 U.S.C. § 1257 25

42 U.S.C. § 1983 — . 2

Neb. Rev. Stat. § 24-219 (Supp. 1984) ....... 26

Neb. Rev. Stat. § 79-1701 (Surppr. 1984) nncecceeoecsnsenseneeneenmsnen 14

Fed. R.Civ.P., Rules 12(b) at 56(¢) —. 28

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States:

Petitioners pray that a writ of certiorari issue to re-

view the judgment and opinion of the United States Court

of Appeals for the Eighth Cireuit entered in this matter

on June 29, 1984, as amended on August 24, 1984.

OPINIONS BELOW

The Order of the District Court of Cass County, Ne-

braska (hereinafter, the “state district court”) was en-

tered on October 14, 1982. (App. A, infra, la-5a). Said

Order was withdrawn by the state district court’s Order

entered October 20, 1982 (App. B, infra, 6a-7a).

The Memorandum on Motions to Dismiss (App. C,

infra, 8a-21a), the Order of Dismissal (App. D, infra, 22a),

and the Order amending the Memorandum (App. E, tw/fra,

23a) of the United States District Court for the District

of Nebraska (hereinafter, the ‘‘ District Court”) are not

yet reported.

The Opinion of the Court of Appeals of June 29, 1984

(App. F, infra, 24a-40a), is reported at 738 F.2d 271. The

Order of the Court of Appeals (App. G, infra, 41a) amend-

ing its slip opinion of June 29, 1984, and the Order (App.

H, fra, 42a) denying rehearing by the panel or en bane

are not yet reported.

oo)

JURISDICTION

T! . opinion of the Court of Appeals was filed on

June 29, 1984. It was amended on August 24, 1984. The

Order denying rehearing en bane was also entered on

August 24, 1984. (App. H, imfra, 42a). The Order of

Associate Justice Blackmun staying issuance of the man-

date of the Court of Appeals was entered September 21,

1984. Because of the printer’s workload and the Thanks-

giving Holidays, Associate Justice Blackmun issued an Or-

der granting Petitioners’ request to extend the time in

which to file this Petition to December 3, 1984. The jur-

isdiction of this Court is invoked under 28 U.S.C. § 1254.

ray

CONSTITUTIONS AND STATUTE

The relevant portions of the Constitution, Article III

and the First Amendment, and 42 U.S.C. § 1983 are set

forth at App. I, wnfra, 43u-44a.

STATEMENT OF THE CASE

1. Respondents allegedly were occupants of the Faith

Baptist Church in Louisville, Nebraska, in the early morn-

ing hours on Monday, October 18, 1982, when Petitioner

Tesch, Sheriff of Cass County, arrived to enforce an or-

der entered by the District Court of Cass County, Ne-

braska. The order, issued four days earlier, specifically

required that the entire church building be padlocked at

that time. (App. A, infra, 4a). Respondents declined to

voluntarily leave the building at the law enforcement offi-

cers’ request and were peacefully removed. (Id.). There

were no arrests, and there was no claim of excessive force

or violence associated with Respondents’ removal from

the building (App. C, infra, 1la-12a).

2, The injunctive order diricting padlocking of the

church building on October 14, 1982, was part of an ac-

tion commenced by the State of Nebraska to enjoin the

operation of Faith Christian School (the “private school’)

in the church building pending compliance with state laws

and regulations governing such activities (App. A, infra,

2a-8a). The initial injunction was affirmed by the Su-

preme Court of Nebraska. Nebraska v. Faith Baptist

Church, 207 Neb. 802. 301 N.W.2d 571 (1981). This Court

dismissed defendants’ appeal from the Nebraska Supreme

Court for want of a substantial federal question. Faith

Baptist Church v. Nebraska, 454 U.S. 803 (1981).

After this Court refused to stay the mandate of the

Nebraska Supreme Court on March 11, 1981, the state dis-

trict court enjoined the church, the private school, aad sev-

eral individnais from further operation of a school until

they complied with Nebraska law (App. C, infra, 15a).

On April 24, 1981, the state district court found the church

and its pastor in contempt, but allowed the private school

to operate for an additional two weeks to complete the

school year ou condition that defendants would thereafter

either cease operation of the private school or comply with

Nebraska law (Designated Record [D.R.”] 40-42).

On September 11, 1981, the state district court de-

termined that the private school had remained in opera-

tion without complying with Nebraska law. To enforce

its order, the court directed the Sheriff of Cass County to

secure the building with padlocks on all entrances, the

building to be opened on Saturday, Sunday and Wednes-

day evenings for the singular purpose of religious serv-

ices (App. C, infra, 16a). This order was appealed, but

the appeal was subsequently dismissed due to appellants’

failure to file briefs. Nebraska v. Faith Baptist Church,

No. 81-726 (Neb. Sup. Ct. 1982); See, Sileven v. Tesch,

212 Neb. 880, 882, 326 N.W.2d 850, 852 (1982). In the

interim the state district court directed the Sheriff to

withdraw the locks when it appeared after two wecks that

the private school was no longer operating in the build-

ing (App. A, m/fra, la-2a).

On February 12, 1982, the state district court found

that Faith Baptist Pastor Sileven was continuing to oper-

ate the private school in violation of state law and in vio-

lation of the injunction. Pastor Sileven was ordered con-

fined in the county jail for four months based on his will-

ful contempt. Thirteen days later Pastor Sileven was re-

leased from jail by the state district court based on the

closing of the private school and Pastor Sileven’s affidavit

disclaiming any further association with the private school

(D.R. 45-48, App. A, infra, 3a). On May 5, 1982, the state

district court found that the private school had been re-

opened in violation of state law and that Pastor Sileven

had been reelected the private school’s administrator. Pas-

tor Sileven was ordered to return to the county jail on

September 1, 1982, to serve the remaining portion of the

four month confinement for contempt of court. (D.R. 50-

51, App. A, infra, 3a).

On October 14, 1982, the state district court found

that the private school had reopened on September 15,

1982, and remained in operation in violation of the in-

junction and of state law. The court reinstated its order

of September 11, 1981, and directed the Sheriff to secure

the building, to open it on Wednesday evenings and week-

ends, and to prevent the operation of a school for the teach-

ing of non-religious subjects from Monday through Fri-

day of each week. The first enforcement was directed to

occur four days later on Monday, October 18, 1982. (App.

A, fra, la-4a).

Six days later, on Wednesday, October 20, 1982, the

state district court found that representatives of the Faith

Baptist Church were desirous of using the building that

afternoon for a prayer meeting and also noted that large

numbers of non-residents were present for the purpose of

resisting the injunction, making the potential for violence

great. Accordingly, t e state district court withdrew its

enforcement order, and the Sheriff removed the padlocks

immediately. (App. B, infra, 6a-7a). On October 22, 1982,

the state district court found that the private school had

been closed and ordered Pastor Sileven released pending

further orders of the court (D.R. 69-70).

3. Respondents filed the present action in the U.S.

District Court for the District of Nebraska on December

13, 1982. The amended complaint sought damages in the

amount of $1,000,000 for each Respondent plus declarg-

tory and injunctive relief based on the peaceful remova! of

Respondents from the Faith Baptist Church and the pad-

locking of the building by the Sheriff and other officers

on October 18, 1982. (D.R. 14-25).

The District Court noted there was no cla'm that At-

torney G:neral Douglas or prosecutor Moravee ever acted

outside their official capacities, and dismissed all damage

claims against them because of their absolute immunity.

Imb'er v. Pachtman, 424 U.S. 409 (1976); White rv. Bloom,

621 F.2d 276 (Sth Cir. 1980). Law enforcement officer

defendants Tesch, Syslo and Sheibourn, were also held to

he absolutely immune from the damage claims because

their actions were non-diseretionary and purely ministerial

in that they did nothing other than perform court orders.

Hevelone v. Thomas, 423 F.Supp. 7 (D Neb. 1976); Rhodes

v. Houston, 202 F.Supp. 624 (D Neb. 1962), aff’d 309 F.2d

959 (8th Cir. 1962), cert. den. 372 U.S. 909 (1963), cert.

den. 383 U.S. 971 (1966). The Sheriff could not padlock

the building without removing all the people in the build-

ing, and he lacked authority under the state court order

to leave the building unlocked even if it was being used

for church services. Plaintiffs were neither arrested nor

were they removed from the church because they were at-

tending a church service; they were removed to enforce

an injunction against the operation of a school. (App. C,

infra, 9a-14a).

The District Court refused to hold the state court or-

ders unconstitutiona! on the alleged grounds that they

authorized the interruption of a church service. It noted

that the proper route of appeal was to the Supreme Court

of Nebraska, and a federal district court cannot hear an

appeal from a state court. D/strict of Columbia Court of

Appeals v. Feldman, — U.S. —, 75 LEd.2d 206, 225, 103

S.Ct. 1303, 1317 (1983). It also noted that an injunction

issued by a state court with proper jurisdiction must be

obeyed unless it is transparently invalid or based on

frivolous pretenses. Walker v. City of Birmingham, 388

U.S. 307, 315 (1967). The injunction here was issued by

a court with jurisdiction, and it was not transparently in-

valid. The Sheriff had been ordered to padlock the build-

ing, and he obviously had to remove everyone in the build-

ing, whether they were a party to the court’s injunction

or not. There was no allegation that any defendant pre-

vented plaintiffs from assembling elsewhere to conduct a

religious service or that defendant incarcerated the plain-

tiffs. (App. C, infra, 12a-14a).

The District Court dismissed claim for injunctive re-

lief based on the abstention doctrine. Younger v. Harris,

401 U.S. 37 (1971). Younger’s principles are applicable

in cases which involve the contempt power of a state court.

Juidice v. Vail, 430 U.S. 327, 335 (1977). Eight of the

plaintiffs had alleged that they were members of the Faith

Baptist Church, a corporation which was named as a de-

fendant in the state court proceeding. Additionally, one

federal plaintiff was named a defendant in the state court

action. The interests of the parties seeking federal re-

lief were closely related to those of the parties in the state

court, and the federal plaintiffs made no attempt to dis-

tinguish themselves from the state court parties. In fact,

the federal plaintiffs asked the District Court to determine

the validity of the specific injunction issued against the

state court parties. There was a clear absence of any in-

dication that the state court proceedings were motivated

by bad faith or based on a statute flagrantly violative of

express constitutional provisions. (App. C, infra, 14a-

21a).

4. A divided panel of the Court of Appeals for the

Eighth Cireuit reversed the judgment of the District Court,

reinstated the damage and injunctive relief claims,

and remanded the action with directions to enter a de-

elaratory judgment in favor of plaintiffs. (App. F, infra,

24a-36a). After setting forth a series of facts, many of

which were unsubstantiated by the record (Reasons, infra,

28), the opinion held that law enforcement officers execut-

ing a court order are not clothed with absolute immunity,

but with qualified, good-faith immunity where the court

order is unconstitutional. (App. F, infra, 31a).

The opinion focused on the language of the state dis-

trict court orders, particularly that of the initial order

directing the padlocking of the building which was entered

more than one year before the event in question. It ob-

served that the Court of Appeals’ duty in such instances

was to construe the state court’s order so as to avoid an

unconstitutional result. The opinion stated that any or-

der opening and closing the building according to a strict

timetable without accommodating religious interests would

be unconstitutional. Schad v. Borough of Mt. Ephriam,

452 U.S. 61, 76-77 (1981). (App. F, infra, 31a-35a).

Without inquiring as to what accommodations had

been made by the state district court, the Court of Appeals

thereupon construed the state district court’s order of

October 14, 1982 (App. A, infra, la-5a), in light of the

prior state order of September 11, 1981 (D.R. 43-44).

This earlier order of September 11, 1981, withdrawn after

only two weeks when it appeared the private school was

no longer operating in the building (App. A, fra, la-2a),

contained a preamble that the building was to be unlocked

Saturdays, Sundays, and such other times as the building

shall be used for the holding of religious services (D.R.

44). From this language the Court of Appea!s’ opinion

concluded that the state court order of October 14, 1982,

did not require the officers to padlock the building when

it was being used for religious services notwithstanding

the specific order to the Sheriff stating that the building

was to be secured and padlocked at all times except

“Wednesday evenings and throughout the weekends start-

ing Saturday morning.” (App. A, infra, la). The Court

of Appeals further held that if there was any ambiguity

in the latter state district court order, it must nonethe-

less be construed against the Sheriff so as to avoid un-

constitutionality (App. F, infra, 31a). |

Having so construed the state court orders, the opin-

ion held the officers’ actions were both unauthorized by

court order and unconstitutional. The District Court’s

rationale for application of the doctrine of abstention to

claims for declaratory and injunctive relief was sum-

marily overruled based on the reinstatement of the damage

claims. (App. F, infra, 35a-36a).

od. The dissenting judge would have upheld the Dis- |

trict Court’s dismissal of the case. (App. F, infra, 36a-

40a). As he saw the matter, there was no ambiguity in

the state court orders. “[T]he officers were faced with

an unpopular but clearly stated assignment.” (App. F,

infra, 37a). He observed that an appellate court was not

in a position to rely upon a generalized pre-order recital

from a prior order for the purpose of construing the or-

ders to the officers’ detriment. (App. A, infra, 37a).

Since the officers had acted in accordance with the

specific judicial commands of the state district court, the

dissenting judge was of the opinion the officers were en-

titled to absolute immunity for the same reasons that

judges, prosecutors and probation officers are afforded

such immunity. Stump v. Sparkman, 435 U.S. 349 (1978);

Imbler v. Pachtman, 424 U.S. 409 (1976); Tymniak v.

eileen

Omodt, 676 F.2d 306 (8th Cir. 1982); Spaulding v. Nielsen,

599 F.2d 728 (5th Cir. 1979). The officers’ function

in executing court orders was intimately and vitally asso-

ciated with the judicial function. “It would be anomalous

for the court to punish obedient law enforcement officers

by exposing them to civil damage liability based on the

shortcomings of orders drafted by absolutely immunized

state judges. Furthermore, it would be unworkable for

the officers to await interpretations from federal appellate

judges rendered long after the orders were executed to

learn whether they will be civilly liable for performing an

assigned duty.” (App. I’, ivfra, 39a).

6. The petition for rehearing en banc was denied by

a five to four vote of the active judges of the Court of

Appeals for the Eighth Circuit. (App. H, mfra, 42a).

Judges Ross, John R. Gibson, Fagg and Bowman voted

for rehearing en banc. Voting against were Chief Judge

Lay and Judges Heaney, Bright, MeMillian and Arnold.

REASONS FOR GRANTING THE PETITION

1. Those who seek to invoke the jurisdiction of fed-

eral court must satisfy the threshold requirement imposed

by Article III of the Constitution by alleging an actual

case or controversy. Jenkins v. McKeithen, 395 U.S. 411,

421-425 (1969); Flast v. Cohen, 392 U.S. 83, 94-101 (1968).

Plaintiffs must demonstrate a ‘‘personal stake in the out-

come” in order to “assure that concrete adverseness which

sharpens the presentation of issues” necessary for the

proper resolution of constitutional questions. Baker v.

Carr, 369 U.S. 186, 204 (1962). Abstract injury is not

enough. Plaintiffs must show that they have “sustained

or [are] immediately in danger of sustaining some direct

injury” as a result of the challenged official conduct, and

the injury or threat of injury must be both ‘‘real and im-

mediate”, not ‘‘conjectural” or ‘‘hypothetical.” See, e.g.,

Golden v. Zwickler, 394 U.S. 103, 109-110 (1969); United

Public Workers v. Mitchell, 330 U.S. 75, 89-91 (1947).

In O'Shea v. Littieton, 414 U.S. 488 (1974), a class of

plaintiffs claimed they had been subjected to discrimina-

tory enforcement of the criminal law. Among other things,

a county judge and magistrate were accused of discrim-

inatory conduct in various respects, such as sentencing

members of plaintiffs’ class more harshly than other de-

fendants. As here, the Court of Appeals reversed the Dis-

trict Court’s dismissal of the suit, ruling that if the alle-

gations were proven, an appropriate injunction could be

entered.

This Court reversed based on the failure of the com-

plaint to allege a case or controversy. J/d., 414 U.S. at

493. Although it was alleged that particular members of

plaintiffs’ class had actually suffered from the alleged un-

constitutional practices, this Court observed that ‘‘[p]ast

exposure to illegal conduct does not in itself show a pres-

ent case or controversy regarding injunctive relief... if

unaccompanied by any continuing, present adverse effects.”

Id. 414 U.S. at 495-496. Past wrongs were evidence bear-

ing on “whether there is a real and immediate threat of

repeated injury.” Jd. 414 U.S. at 496. But the prospect

of future injury rested on “the likelihood that [plaintiffs]

will again be arrested and charged with violations of the

criminal law and will again be subjected to bond proceed-

ing, trial, or sentencing before petitioners.” Ibid. No

case or controversy could be found in those circumstances:

the threat to the plaintiffs was not ‘‘sufficiently real and

immediate to show an existing controversy simply because

they anticipated violating lawful criminal statutes and be-

ing tried for their offenses .. .” Jd. 414 U.S. at 496. It

was to be assumed “‘that [plaintiffs] will conduct their ac-

tivities within the law and so avoid prosecution and con-

viction as well as exposure to the challenged course of con-

duct said to be followed by petitioners.” Jd., 414 U.S. at

497.

Golden v. Zwickler, 394 U.S. 103 (1969), is also a case

arising in an analogous situation. Congressman Zwickler

sought a declaratory judgment that a New York statute

prohibiting anonymous handbills directly pertaining to

election campaigns was unconstitutional. Although Zwick-

ler had once been convicted under the statute, he was no

longer a Congressman apt to run for reelection. A unani-

mous Court held that because it was “most unlikely” that

Zwickler would again be subject to the statute, no case or

controversy of ‘‘sufficient immediacy and reality” was

present to allow a declaratory judgment. /d., 394 U.S.

at 109.

No extension of O’Shea and Go-den is necessary to

hold that Respondents in this case have failed to demon-

strate a case or controversy sufficient to justify injunc-

tive or declaratory relief. Here the Faith Baptist Church,

a corporation, its officers, and certain others were en-

joined by the state district court from opcrating a private

school or using the church property for the operation of

a private school until such time as they complied with the

Nebraska statutes and the rules and regulations of the

State Department of Education governing approved

schools. (D.R. 32-33). On appeal, the Nebraska Supreme

Court affirmed, Nebraska v. Faith Baptist Church, 207

Neb. 802, 301 N.W.2d 571 (1981), and this Court dismissed

for want of a substantial federal question, Faith Baptist

Church v. Nebraska, 454 U.S. 803 (1981).

Subsequently, the Faith Baptist Church and one of

its officers, Pastor Sileven, were found to be in contempt.

This ultimately resulted in the entry of an enforcement

/BEST AVAILABLE COPY

order by the state district court on October 14, 1982, where-

by the Sheriff was directed to secure the building in which

was located the Faith Baptist Church and the private

school by placing padlocks on the entrances thereto,

the building to be open on Wednesday evenings and week-

ends until further order of the court. (App. A, infra, la-

4a). Six days later, Wednesday, October 20, 1982, the state

district court found that representatives of the Faith Bap-

tist Church were desirous of holding a prayer meeting that

afternoon in the building and that large numbers of non-

residents were present with the purpose of resisting the

injunction, making the potential for violence great. Ac-

cordingly, the state district court withdrew its enforcement

order, and the Sheriff removed the padlocks immediately,

such locks having remained off the building to this date.

(App. B, infra, 6a-7a).

It must be emphasized that the padlocks were removed

from the building pursuant to the state district court order

on October 20, 1982, and that Respondents’ complaint was

filed in the District Court on December 13, 1982. In other

words, the building had been unlocked for almost two

months before the Respondents filed their complaint in

this matter. Thus, even if it were assumed that the state

district court erred in directing the Sheriff to padlock the

building or that the Sheriff misconstrued the order of the

state district court, assumptions which are incorrect, the

fact remains that the state district court order had been

withdrawn almost two months before the federal complaint

was filed. There was no allegation in the complaint that

the state district court was about to reinstate its order.

Rather, it is alleged only that the Sheriff may again pad-

lock the building at some unknown future date. The spec-

ulative nature of such a claim requires a finding that Re-

spondents have not met the Article III requirements for

declaratory and equitable relief. City of Los Angeles v.

Lyons, — U.S. —, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ;

O’Shea v. Littleton, supra; Golden v. Zwickler, supra.

Finally, the basis for the injunction and enforcement

orders entered by the state district court was the Nebraska

teacher certification law. Nebraska v. Faith Baptist

Church, supra. That law was amended by L.B. 928 of

the Eighty-Eighth Legislature of Nebraska which elimi-

nated the requirement for state certification of teachers in

private schools where the parents provide their written

consent. See, Neb. Rev. Stat. § 79-1701 (Supp. 1984).

Hence, even if Respondents’ claims were not found to be

speculative, there can still be no continuing, present ad-

verse effects on which to demonstrate a present case or

controversy as required by Article III of the Constitution.

2. The Court has held that judges are absolutely

immune from civil suits for damages for all acts per-

formed in their judicial capacity. Stump v. Sparkman,

435 U.S. 349 (1978); Pierson v. Ray, 386 U.S. 547 (1967).

This immunity has been extended by the lower courts to

law enforcement officers and others who carry out the

orders of judges. E.g., Slotnick v. Garfinkle, 632 F.2d

163, 166 (1st Cir. 1980) (court clerk, sheriff and hospital

superintendent who carried out judge’s commitment or-

ders shared the judge’s absolute immunity); Ashbrook

v. Hoffman, 617 F.2d 474, 476 (7th Cir. 1980) (commis-

sioners appointed by a court to implement judicial decree

of partition shared the judge’s absolute immunity even

though unauthorized unconstitutional conduct was al-

leged) ; Spaulding v. Nielsen, 599 F.2d 728 (5th Cir. 1979)

(probation officers who prepared presentence report at

court’s direction shared judge’s absolute immunity) ; Fow-

ler v. Alexander, 478 F.2d 694, 696 (4th Cir. 1973) (sher-

iff and jailor who confined plaintiff in execution of a

court order were absolutely immune); Burkes v. Callion,

433 F.2d 318 (9th Cir. 1970), cert. denied 403 U.S. 908

(1971) (probation officer who prepared presentence re-

port and court appointed medical examiner shared the

judge’s absolute immunity). A fundamental reason for

these rulings was stated in Blouin v. Dembitz, 367 F.Supp.

415 (S.D.N.Y. 1973), aff'd, 489 F.2d 488 (2nd Cir. 1973):

Statutes and ruling case law protecting state judges

in the discharge of their functions may not be cir-

cumvented or vitiated by pretending to maintain this

suit also against their “clerk, servants and agents”

for no court can discharge its judicial duties without

the aid of clerks, servants and avents.

367 F.Supp. at p. 422.

Prior rulings of the Eighth Cireuit concerning the

immunity of law enforcement officers carrying out court

orders were consistent with the authorities from the other

circuits noted above. Tymiak v. Omodt, 676 F.2d 306, 308

(Sth Cir. 1982) (sheriff implementing eviction order was

absolutely immune from damages and injunctive relief

claims); Duba v. McIntyre, 501 F.2d 590, 592 (Sth Cir.

1974), cert. denied, 424 U.S. 975 (1976) (quasi-judicial im-

munity for police officers performing court orders):

Hevelone v. Thomas, 423 F.Supp. 7, 9 (D. Neb. 1976),

aff'd, 546 F.2d 797 (8th Cir. 1976) (sheriff implementing

i nici sine liana aia tai a

padlocking order was absolutely immune and could not

carry out order without evicting all occupants); Rhodes

v. Houston, 202 F.Supp. 624 (D.Neb. 1962), aff'd, 309 F.2d

959 (Sth Cir. 1962), cert. denied, 372 U.S. 909 (1963), cert.

denied, 383 U.S. 971 (1966). The Court of Appeals’ opin-

ion in the present case held, to the contrary, that law en-

forcement officers executing a court order are not clothed

with absolute immunity, but have only qualified, good-

faith immunity where the order they are executing is un-

constitutional. (App. F, infra, 35a).

The Court of Appeals reached this result by a two-

step process. First, it held that if the state district court

order in question authorized the padlocking of the build-

ing beginning on Monday, October 18, 1982, “the same to

be unlocked for the holding of religious services on

Wednesday evenings and throughout the weekends start-

ing Saturday morning” (App. A, infra, la and 4a), then

such order was unconstitutional in the judgment of the

Court of Appeals. (App. F, infra, 31a-34a).

Second, the Court of Appeals noted that the state

district court order in question had “reinstated” (App.

A, infra, 4a) a prior order of September 11, 1981 (D.R.

43-44) which, in the preamble stated, “the building is to

be unlocked Saturday and Sunday and such other times

as the building shall be used for the holding of religious

church services.” (Jd.) This same order went on, how-

ever, to provide:

“IT IS THEREFORE ORDERED, ADJUDGED

AND CONSIDERED by the Court that the defend-

ants, Reverend Everett Sileven and Faith Baptist

Church, are in contempt of the orders of this Court

and that the Sheriff of Cass County shall forthwith

secure the building by the placing of locks on each of

the entrances to the church; the building to be opened

on Saturday, Sunday and Wednesday evenings for

the singular purpose of religious services.”

(Id.) Based solely on the preamble of an order entered

more than one year before the event in question, and

without regard to the judgement in that order. the Court

of Appeals held that the state district court’s directions

to the Sheriff in its order of October 14, 1982, were. at

best, ambiguous, and that the Sheriff had acted uncon-

stitutionally in following the clear command of the sec-

ond order. (App. F, infra, 31a-34a).

Suffice it to say that this novel exception to the ab-

solute immunity formerly granted by the Eighth Circuit

to law enforcement officers carrying out court orders en-

sulfs such immunity. Footnote 2 of the Court of Appeals’

opinion (App. F, ixfra, 29a) appears to concede this point,

but the opinion suggests that no harm is done since svch

officers remain protected by a qualified, eood-faith im-

munity. (/d., 35a). In footnote 4, the opinion states:

The fact that the officers acted under color of the

state-court orders will be relevant to this inquiry.

There may enough ambiguity in the orders to war-

rant a determination by the District Court that the

defendants reasonably believed that the orders man-

dated the action taken here and that the action was

constitutional because the judge had ordered it.

(Id., 35a)

The significance of depriving law enforcement offi-

cers of absolute immunity when they are carrying out

court orders is best shown by reviewing the objective

standard for qualified, good-faith immunity set forth in

Harlow v. Fitzgerald, 457 U.S. 800 (1982) :

We therefore hold that government officials perform-

ing non-discretionary functions generally are shielded

from liability for civil damages insofar as their con-

duct does not violate clearly established statutory or

constitutional rights... .

102 S.Ct. at 2738. The fulcrum of liability is whether or

not at the time the officer acted there existed “clearly

established” judicial decisions which made his action un-

constitutional. Jd., 102 S.Ct. at 2739.

While the governmental official in Harlow, supra,

had discretion whether or not to act, the law enforcement

officer given a facially valid judicial order by a court

having jurisdiction to issue said order does not have such

diseretion. The officer’s alternatives are either to refuse

to act and thus face possible contempt of court charges, or

to execute the order and, under the Eighth Circuit’s opin-

ion, risk being held civilly liable if the action directed by

the court order is unconstitutional. As recently stated by

this Court in another context:

In the ordinary case, an officer cannot be expected

to question the magistrate’s probable-cause determin-

ation or his judgment that the form of the warrant

is technically sufficient. “[O]nce the warrant issues,

there is literally nothing more the policemen can do

in seeking to comply with the law.” .. . Penalizing

the officer for the magistrate’s error, rather than his

own, cannot logically contribute to the deterrence of

Fourth Amendment violations.

U.S. v. Leon, — U.S. —, 104 S.Ct. 3405, 3420 (1984) (cita-

tion omitted). Here there is no dispute as to either the

basis for the state district court’s order directing the

Sheriff to padlock the building or as to the jurisdiction

of the state district court to enter the order. When the

state district court’s order is “read in a straightforward

fashion, the officers ... were charged by a state judge with

the responsibility to close and lock a church building on

October 18, 1982, and to reopen it during specified pe-

riods.” (App. F, infra, 37a, Fagg, J., dissenting). The

law enforcement officers are entitled to absolute immu-

nity, and the Court of Appeals judgment should be re-

versed.

3. A state’s attorney general and a prosecuting at-

torney are absolutely immune for actions made in connec-

tion with an official prosecution, even if maliciousness is

alleged. Imbler v. Pachtman, supra; White v. Bloom,

supra; Rhodes v. Houston, supra. Petitioners Douglas

and Moravec were sued solely in their official capacity as

Nebraska Attorney General and Cass County Attorney,

respectively. As found by the District Court, ‘‘[t]here is

no allegation that [Douglas and Moravec] ever acted out-

side of their official capacities; indeed, although para-

graph 85 of the amended complaint seeks damages from

all of the defendants, the plaintiffs’ brief says explicitly

that the only remedy sought against these two defendants

is declaratory and injunctive relief and attorney’s fees.”

(App. C, infra, 9a). The District Court also noted that

Moravec had filed an affidavit (D.R. 84) which recites that

his only connection with the padlocking incident was to

initiate the enforcement and contempt proceedings in his

capacity as Cass County Attorney. (App. C, infra, 9a).

Accordingly, the District Court held that Douglas and

Moravec were absolutely immune and dismissed the mone-

tary damage claims against them. (App. C, infra, 9a).

The District Court also dismissed the declaratory and in-

junctive relief claims against Douglas and Moravec based

on the abstention doctrine and the fact that nlaintiffs

were seeking a determination only as to the validity of the

state district court’s injunction. (App. C, infra, 14a-21la).

The Court of Appeals, however, apparently reversed

sub stlentio the District Court’s dismissal of the claims for

damages, declaratory and injunctive relief against Doug-

las and Moravee (App. F, fra, 36a) based on its holding

that the state district court orders and the execution there-

of were unconstitutional. Such judgment was clearly er-

roneous. Indeed, this is the only known case in which a

state attorney general and a county prosecuting attorney

have ever been held subject to damages, declaratory and

injunctive relief under such circumstances.

4. The amended complaint, D.R. 22, alleges the Conn-

ty of Cass “is a body politic and corporate, and a polit-

ical subdivision of the State of Nebraska.” However,

nothing in the amended complaint or in the designated

record identifies any action, custom or policy of the

County which allegedly deprived the Respondents of their

constitutional rights. It is an elementary rule of pleading

and procedure that a plaintiff must allege and prove more

in his or her complaint than the defendant(s) name. See,

Baker v. McCollan, 443 U.S. 137 (1979); Prettyman v.

State of Nebraska, County of Cass, 537 F.Supp. 712 (D.

Neb. 1982). Thus, the Court of Appeals erred when it

reversed the District Court order dismissing Cass County

from the case.

5. In Younger v. Harris, 401 U.S. 37, 43-54 (1971),

this Court proscribed the federal courts from enjoining

pending state criminal prosecutions except under extra-

ordinary circumstances where the danger of irreparable

loss is both great and immediate, such that the threat to

the plaintiff’s rights cannot be eliminated by his defense

to the state court prosecution or except upon a showing of

bad faith, harrassment or other unusual circumstances in

the enforcement of an allegedly unconstitutional! statute.

Younger’s principles have been extended to cases involv-

ing the contempt power of a state court. Juidice v. Vail,

430 U.S. 327, 335 (1977).

The District Court noted that the Supreme Court of

Nebraska had affirmed the state district court injunction

azainst the operation of the private school and upheld the

constitutionality of the school certification laws upon

which the injunction was based. Nebraska v. Faith Bap-

tist Church, 207 Neb. 802, 301 N.W.2d 571 (1981). Addi-

tionally, this Court dismissed defendants’ appeal from that

decision for want of a substantial federal question. Faith

Baptist Church v. Nebraska, 454 U.S. 803 (1981). The Dis-

trict Court also found that the state court proceedings

were not motivated by a desire to harass or conducted in

had faith. Rather, “each step in the process has been au-

thorized by court order....” (App. C, infra, 21a). The

District Court concluded :

[I]ssuing the injunction requested by the plaintiffs

would interfere with an ongoing state proceeding. The

Supreme Court of Nebraska has declared that the

Faith Baptist Church may not operate a school under

certain conditions, and a lower state court repeatedly

has issued injunctions to that effect. Two of those

injunctions directed the sheriff to do precisely what

the plaintiffs in this case would have me order him not

to do—i.e., padlock the building used for the church

school.

(App. C, infra, 16a-17a).

In reaching this conclusion, the District Court recog-

nized that some of the federal plaintiffs were not parties

to the state court proceedings, but it pointed out that at

least eight federal plaintiffs alleged that they were mem-

bers of the Faith Baptist Church, a corporation which was

one of the defendants in the state court proceedings. Addi-

tionally, one of the federal plaintiffs, Ralph L. Liles, had

been named a defendant in the state court action (App. C,

infra, 18a). Thus, ‘‘the interests of the parties seeking

federal relief are closely related tc those of the parties in

state court, and the federal plaintiffs have made no attempt

to distinguish themselves from the state court parties.”

(App. C, infra, 20a). The federal plaintiffs’ interests were

sufficiently intertwined with those of the state court de-

fendants to justify invocation of the abstention doctrine.

Doran v. Salem Inn Inc., 422 U.S. 922, 928-934 (1975) ;

Hicks . Miranda, 422 U.S. 332, 348-349 (1975).

The Court of Appeals summarily rejected the District

Court’s rationale for invoking the abstention doctrine in

response to plaintiffs’ claims for declaratory and injunc-

tive relief. The opinion stated, “‘[s]Jince this amounts to a

declaratory judgment and since the damages claim is now

back in the ease, there is no basis for abstention on the

claims for prospective relief.” (App. F, infra, 35a-36a).

The presence or absence of damage claims, however, has

nothing at all to do with the application of the abstention

doctrine to declaratory and injunctive relief claims. Y oung-

er, supra. Moreover, plaintiffs here made no showing as to

the presence of a “great and immediate” threat of irrepar-

able injury. Younger, supra, 401 U.S. at 46. While the Ne-

braska school statutes underlying the contempt proceedings

in the state district court have been amended, there are re-

maining in the Nebraska courts several contempt proceed-

ings arising out of the original injunction entered by the

state district court. See, e.g., In re Liles, 217 Neb. 414,

349 N.W.2d 377 (1984). Accordingly, the Court of Ap-

peals erred when it reversed the District Court’s invoca-

tion of the abstention doctrine.

6. As demonstrated above, the injunction (D.R. 33)

granted by the state district court was reviewed by the

Nebraska Supreme Court and by this Court. Its judgment

was affirmed. Nebraska v. Faith Baptist Church, supra;

Faith Baptist Church v. Nebraska, supra. Subsequently,

some of the defendants in that case, including the Faith

Baptist Church, a corporation, were found in contempt of

court on one or more occasions for operating the private

schoo! in violation of the injunction.

On the first contempt, April 24, 1981, the state district

court permitted the private school to continue to operate

for an approximate two week period, which was the bal-

ance of the school term, rather than run the risk of harm

to the students by closure of the private school at that

time. (D.R. 41). The state district court, however, ad-

monished the Faith Baptist Church and its pastor that

they must discontinue the school after the then current

term, which was no later than May 30, 1981, unless they

had complied with the Nebraska law for accreditation.

(D.R. 42).

On September 11, 1981, the Faith Baptist Church, a

corporation, and its pastor were both found in contempt.

As a result, the state district court entered the following

order:

IT IS THEREFORE ORDERED, ADJUDGED

AND CONSIDERED by the Court that the defend-

ants, Reverend Everett Sileven and Faith Baptist

Church, are in contempt of the orders of this Court

and that the Sheriff of Cass County shall forthwith

secure the building by placing of lecks on each of the

entrances to the church: the building to be opened on

Saturday, Sunday and Wednesday evenings for the

singular purpose of religious services. (D.R. 44).

The above order was enforced by law enforcement

officers for a period of “approximately two weeks” when

the state district court verba'ly directed the sheriff to

withdraw enforcement, “it appearing that the injunction

was being complied with.” (App. A, imfra, la-2a). A no-

tice of appeal was filed to the Nebraska Supreme Court.

However, because no briefs were filed, the appeal was dis-

missed. Sileven v. Tesch, 212 Neb. 850, 326 N.W.2d 850,

852 (1982).

On February 12, 1982, the pastor was again found in

contempt for violating the injunction and was ordered con-

fined to the county jail for a period of four months. (D.R.

46). He was released from jail after serving 13 days when

he filed an affidavit under oath, claiming to have “severed

all connections, duties and responsibilities in the operation

of the Faith Baptist School ....” (Jd.)

On May 6, 1982, the pastor of the Faith Baptist Church

was again found in contempt and was ordered confined in

the county jail for a period of 3 months and 17 days, such

confinement to begin September 1, 1982. In the interim,

he was released without recognizance. (D.R.51). He did

not surrender himself on September 1, 1982, whereupon a

bench warrant was secured for his arrest (D.R. 52-54).

On September 23, 1982, the Cass County Attorney

filed a motion and affidavit wherein he prayed the state

district court to authorize and direct the Sheriff of Cass

County to carry out the provisions of the order of the state

district court of September 11, 1981, whereby locks would

be placed on the church for the reason that several visiting

preachers were assisting the parents and members of the

church in keeping the private school open in violation of the

injunction. (D.R. 56). On October 6, 1982, the Cass Coun-

ty Attorney filed a supplemental motion wherein he al-

leged the private school was still in operation and moved

the court ‘‘that locks be placed on each of the entrances to

the building to be opened for religious services at such

times as the Court deems necessary or advisable.” (D.R.

57-61). The same came on for hearing on October 14,

1982, at which time the state district court judge entered

an order wherein he summarized the above described mo-

tion and supplemental! motion filed by the Cass County At-

torney and then interpreted his above quoted order of Sep-

tember 11, 1981, as follows:

“(That order directing the sheriff to procure

and install additional locks to keep the building se-

cured, the same to be unlocked for the holding of reli-

gious services on Wednesday evenings and throughout

the weekends starting Saturday mornings.

(App. A, mfra, 1a). The state district court then sum-

marized some of the past proceedings in this matter, made

certain findings of fact, and then stated:

The Court has this date determined that the

school is still being operated in violation of the in-

junction order; that they have failed to seek initial

approval status as an approved school system or an

attempted compliance with the other requirements as

found in the injunction order: and that the initial Or-

der of September 11, 1981, directing the sheriff to

secure the school building should be reinstated, direct-

ing the sheriff to secure the school building, the or-

ders of this Court prohibiting the operation of a

school for the teaching of non-religicus subjects to be

enforced. The building shall remain open on Wed-

nesday evenings and throughout the weekend, the

sheriff to withdraw security on Friday evenings at

5:00 p.m. and to enforee the order prohibiting the

operation of a school on each Monday through Friday

until further order of this Court. (App. A, wfra, 4a).

Thus, there can be no doubt that Sheriff Tesch had an

absolute legal duty to padlock the building on October 18,

1982, after clearing it, of course, of any of its occupants.

For the Court of Appeals to hold that the Sheriff Tesch

did not have such a duty is reversible error.

BEST AVAILABLE COPY §

There being no issue as to the jurisdiction of the state

district court in the contempt proceeding to impose sanc-

tions by issuing the Order of October 14, 1982, the Court

of Appeals absolutely lacked jurisdiction to review and

determine the constitutionality of that order. Only this

Court could review that order and then only after it had

been reviewed by the Nebraska Supreme Court. 28 U.S.C.

§ 1257. As recently stated by this Court in District of

Columbia Court of Appeals v. Feldman, — U.S. —-, 103

S.Ct. 1303, 1317, 75 L.Ed.2d 206, 225 (1983) :

[United States District Courts] do not have jurisdic-

tion... over challenges to state court decisions in par-

ticular cases arising out of judicial proceedings even

if those challenges allege that the state court’s ac-

tion was unconstitutional. Review of those decisions

may be had only in this Court.

[Emphasis supplied.] Thus, the Court of Appeals erred

when it undertook to review the state district court’s order

of October 14, 1982.

Moreover, even if it were assumed that the Court of

Appeals had jurisdiction, an assumption which is in-

correct, surely the principles of comity would pre-

vent the Court of Appeals from placing a different

interpretation on the state district court ordcr of Sep-

tember 11, 1981, than was placed thereon by the same

state district court judge who drafted the order. (App. A,

infra, la). If the state district court orders of September

11, 1981, and October 14, 1982, are to be construed in this

ease, the very least the Court of Appeals should have done

was to certify the question(s) it had about the two orders

to the Nebraska Supreme Court. Neb. Rev. Stat. § 24-219

(Supp. 1984). For the Court of Appeals to construe to the

two (2) subject state court orders in a manner different

from the construction placed thereon by the state district

court judge who drafted them and as a result hold ‘‘that

the officers’ action was unconstitutional” is an insult to

the principles of comity and to the majesty of the law

itself.

If the Court of Appeals had jurisdiction, it also erred

when it directed entry of a declaratory judgment in the ab-

sence of an indispensable party. (D.R. 26). Sheriff Tesch

did not padlock the building on his own whim, but did so

pursuant to the command of the October 14, 1982, order of

the state district court. To enter a declaratory judgment

and an injunction against a law enforcement officer in these

circumstances is to put the officer between a hard spot and

a rock. If he executes the order, he can be liable for dam-

ages and attorney fees in the federal courts. If he refuses

to execute the order, he can be held in contempt by the

state district court.

If it is assumed that the Court of Appeals had

jurisdiction in this matter, an assumption which is

incorrect, there is a failure to join an indispensable party

or at the very least there is a failure to afford Sheriff

Tesch due process by permitting him to call the state

district court judge who drafted the subject order as a

witness to testify as to his interpretation thereof. Pulliam

v. Allen, — U.S. —, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) ;

Fountam v. Filson, 336 U.S. 681 (1949).

The purpose of introducing selected parts of the state

court record with the Petitioners’ motion to dismiss was

merely to demonstrate that an order was entered by the

state district court requiring certain ministerial actions by

law enforcement officers and not to demonstrate the legal

and constitutional sufficiency of the same. If the Court of

Appeals had jurisdiction to review the orders of the state

district court, the petitioners have obviously been denied

an adequate opportunity to show by a complete record,

rather than by contesting inaccurate characterizations of

opposing counsel, that the state district court order was

constitutional and properly executed. That calls for an

exercise of this Court’s power of supervision.

The opinion of the Court of Appeals in reviewing and

construing the orders of the stat» district court and in

directing entry of a declaratory judgment against the Peti-

tioners based on their motions to dismiss does not conform

to Rules 12(b) and 56(c¢). It is submitted that there is no

evidence in the designated record that will suppert the

following quotes found in the opinion of the Court of

Appeals:

(1) The Sheriff arrived at the building “with fifteen

carloads of deputies and state troopers” (App. F,

infra, 27a);

(2) The plaintiffs ‘‘were conducting a ‘prayer vieil’”

(/d.);

(3) The plaintiffs were ‘‘singing, preaching, reading

the Bible, praying, and so forth, to protest the

jailing of Mr. Sileven and the closing of thie

school.” (Jd.) ;

(4) ‘‘No school children were present” (I/d.); and

(5) ‘*[N]o classes were being held.” (J/d.).

Petitioners can only conclude that the above-listed quota-

tions were obtained by the Court of Appeals from state-

ments of opposing counsel in his brief or oral argument.

It is elementary that statements made by counsel in their

briefs or on oral argument as to facts outside the reeord

do not constitute facts for the purpose of judicial findings

required by Rules 12(b) and 56(¢c), Fed.R.Civ.P. £E.g.,

Trinsey v. Pagliaro, 229 F.Supp. 647 (E.D. Pa. 1964).

- A ln

Clearly, such findings by the Court of Appeals should be

vacated as well as its direction to the District Court to

enter declaratory judgment.

ra’

CONCLUSION

For any or all of the reasons discussed herein, a writ

of certiorari should issue to review the opinion of the

United States Court of Appeals for the Eighth Circuit.

Respectfully submitted,

Paut L. Doveias

Attorney General of Nebraska

Haro_tp MosHER

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509-4906

(402) 471-2682

Jerry W. KATSKEE

AnD Mitton A. KaTSKEE

oF Katsker & HENATSCH

430 Plaza of the Americas

7171 Merey Road

Omaha, Nebraska 68106

(402) 391-1697

APPENDIX A

IN THE DISTRICT COURT OF

CASS COUNTY, NEBRASKA

DOCKET 24 PAGE 138

STATE OF NERRASKA, ex rel.

PAUL L. DOUGLAS, Nebraska

Attorney General, et al.,

Plaintiffs,

Vs.

FAITH BAPTIST CHURCH OF LOUISVILLE,

NEBRASKA, a corporation; FATTH CHRISTIAN

SCHOOL, Louisville, Nebraska;

EVERETT SILEVEN, et al.,

Defendants.

ORDER

(Filed Oectoher 14, 1982)

Now on this 14th day of October, 1982, the above en-

titled comes before the Court on the Motion and Affidavit

of Ronald D. Moravec, County Attorney of Cass County,

Nebraska, and the Supplemental Motion and affidavit of

Larry Shelbourn, Chief Deputy to the Sheriff of Cass

County, Nebraska. The Motion and Supplemental Motion

in substance pray for an additional order directing the

sheriff to enforce the orders of this Court as set out on

September 11, 1981; that Order directing the sheriff to

procure and install additional locks to keep the building

secured, the same to be unlocked for the holding of relig-

ious services on Wednesday evenings and throughout the

weekends starting Saturday mornings.

This Order was enforced by the enforcement officers

of this county for a period of approximately two weeks at

which time the Court was informed that the school was no

longer operating in the school building. The Court then

verbally directed the sheriff to withdraw enforcement of-

ficers, it appearing that the injunction order was being

complied with.

The affidavit of the county attorney generally advises

the Court that the school was re-opened on September 15,

1982, in violation of the injunction order; and the affidavit

of Deputy Shelbourn further advises the Court that the

same has been in operation 7nd on October 4, 1982, the

school building was entered, the officers observing that

twenty-nine pupils were in attendance at the school and

that the same was continuing to operate in violation of the

injunction order.

As a resume of the proceedings which have transpired

in the past, the records reflect that this matter was filed

on April 24, 1979, with the Attorney General and the Coun-

ty Attorney of Cass County, Nebraska, appearing as plain-

tiffs, and Faith Baptist Church of Louisville, Nebraska,

Faith Christian School of Louisville, Nebraska, Reverend

Everett Sileven. Edgar Gilbert. Tressie Sileven, Martha

Gilbert, Helen Aldrich, Ralph Liles, Kenneth Heard, David

Carlson and Walter Peterson as defendants.

The case reached issue and was heard in this court on

July 16, 17 and 18, 1979; and after allowance of time for

briefs, the Court, on September 11, 1979, found that Faith

Baptist Church was conducting a school with non-certified

teachers and administrators and had failed to comply with

the requirements for accreditation under the laws of this

state. The injunction was then issued.

This was appealed to the Supreme Court of this state

who issued its opinion on January 30, 1981, affirming the

= -—4— »

rulings of this Court. The constitutional questions raised

were attempted to be submitted to the United States Sup-

reme Court and were denied. In a letter from the Clerk

of the Supreme Court of the United States directed to the

Attorney General of Nebraska and signed by Alexander

L. Stevas as Clerk, the Court was advised that an Order

had been entered in this case which read as follows: “The

appeal is dismissed for want of a substantial federal ques-

tion. Justice O’Connor took no part in the consideration

or decision of this case.”

The school was subsequently re-opened and in a con-

tempt proceeding this Court entered a sentence of confine-

ment to the jail of the county for a period of four months

as to the defendant Reverend Everett Sileven, he being

found to be in contempt of the court orders. At that time

he served a period of thirteen days, the school once again

being closed and at which time the Court was led to believe

that the parties had purged themselves. The school sub-

sequently opened once again and the Court, in a hearing,

on the stipulations of the parties, found the defendant

Reverend Everett Sileven to be in contempt once again

and confined him to the jail of the county for the balance

of the four months, the confinement to start on Septem-

ber 1, 1982.

The defendant failed to surrender himself on that

date, and under a bench warrant was arrested on Septem-

ber 3rd and is presently incarcerated in the Cass County

Jail.

The issues in this case have been passed upon twice

by the Supreme Court of Nebraska, the first being in

Meyerkorth v. State (1962) identified as 173 Neb. 889, 115

N.W.2d 585, and subsequently in the present case which

is identified as 207 Neb. 802, 301 N.W.2d 571.

The Court has this date determined that the school

is still being operated in violation of the injunction order;

that they have failed to seek initial approval status as an

approved school system or an attempted compliance with

the other requirements as found in the injunction order;

and that the initial Order of September 11, 1981, directing

the sheriff to secure the school building should be rein-

stated, directing the sheriff to secure the school building,

the orders of this Court prohibiting the operation of a

school for the teaching of non-religious subjects to be en-

forced. The building shall remain open on Wednesday

evenings and throughout the weekend, the sheriff to with-

draw security on Friday evenings at 5:00 p.m. and to en-

force the order prohibiting the operation of a school on

each Monday through Friday until further order of this

Court.

IT IS THEREFORE ORDERED, ADJUDGED AND

CONSIDERED by the Court that the Order of this Court

entered September 11, 1981, shall be reinstated, the Sher-

iff of Cass County and his enforcement personnel to en-

force the Order of this Court prohibiting the operation of

a non-approved school, the first enforcement thereof to be

exercised Monday, October 18, 1982; it being the intent of

the Court that the parents of children attending thereat

shall have advance notice of the action taken by the Court.

Dated this 14th day of October, 1982.

BY THE COURT:

/s/ Raymond J. Case

District Judge

~—- . |

STATE OF NEBRASKA)

)SS

COUNTY OF CASS )

Received this Order on the 14th day of October, 1982, and

according to the command thereof, on the morning of Oc-

tober 18, 1982, I cleared the church of its occupants, and

padlocked the doors securing the building.

Dated this 2nd day of November, 1982.

/8/ Fred Tesch

Sheriff

APPENDIX B

IN THE DISTRICT COURT OF

CASS COUNTY, NEBRASKA

DOCKET 24 PAGE 138

STATE OF NEBRASKA, ex rel.

PAUL L. DOUGLAS, Nebraska

Attorney General, et al.,

Plaintiffs,

vs.

FAITH BAPTIST CHURCH of Louisville,

Nebraska, a Corporation; FAITH CHRISTIAN

SCHOOL, Louisville, Nebraska;

EVERETT SILEVEN, et al.,

Defendants.

ORDER

(Filed October 20, 1982)

Now on the 20th day of October. 1982, the Court hav-

ing met with representatives of the Faith Baptist Church

and having been advised that large numbers of their group

were desirous of holding a prayer meeting to start in mid-

afternoon, the Court forthwith called enforcement per-

sonnel, directing them to remove their personnel and any

other methods used in securing the building to the extent

that the religious service could proceed without delay.

And the Court thereafter having consulted with the

County Attorney’s Offices and being well and fully ad-

vised in the premises finds that there are going to be large

groups who have traveled long distances who are non-

residents of the State of Nebraska whose purposes are to

resist the laws of this state as interpreted by the courts

thereof, and that the potential for violence is great.

The Court further finds that enforcement personnel

are insufficient in number to cope with the potential vio-

lence and that the enforcement orders of September 11,

1981 and October 14, 1982, should be suspended until fur-

ther order of this Court.

IT IS THEREFORE ORDERED, ADJUDGED AND

CONSIDERED by the Court that the orders of the Court

entered September 11, 1981 and October 14, 1982, be and

the same are hereby suspended until further order of this

Court.

Dated this 20th day of October, 1982.

BY THE COURT:

/s/ Raymond J. Case

District Judge

STATE OF NEBRASKA)

)SS

COUNTY OF CASS )

Received this Order on the 20th day of October, 1982, and

I hereby complied with the suspension of the Orders of the

Court entered September 11, and October 14,1982, by un-

locking the church doors, and leaving my padlocks off.

Dated this 2nd day of November, 1982.

/s/ Fred Tesch

Sheriff

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CV82-L-659

ROBERT E. McCURRY, et al.,

Plaintiffs,

vs.

FRED TESCH, et al.,

Defendants.

MEMORANDUM ON MOTIONS

TO DISMISS

(Filed July 28, 1983)

This action arises out of the well-publicized efforts

of the District Court of Cass County, Nebraska, and Ne-

braska law enforcement officials to prevent the operation

of an uncertified school by the Faith Baptist Church of

Louisville, Nebraska. The amended complaint, filing 7,

alleges that the defendants caused the sheriff’s depart-

ment and the state patrol to raid a church service at the

Faith Baptist Church and that during the raid the plain-

tiffs were forcibly removed from the church and the church

was padlocked. The complaint seeks $1 million in dam-

ages from each of the defendants and a permanent injunc-

tion restraining the defendants from lecking the church

or otherwise interfering with the plaintiffs. The defend-

ants have filed separate motion: to dismiss, filings 8

through 13; they claim that they acted solely in their of-

ficial capacities and that the “raid” actually was a good

faith effort to enforce an injunction entered by the Dis-

trict Court of Cass County to prevent the operation of an

uncertified school.

a Ey a CR. ee 8.

tet eNO hs hans

I turn first to the plaintiffs’ claims for monetary dam-

ages. A state’s attorney general and a prosecuting attor-

ney are absolutely immune for actions made in connection

with official prosecutions, even if maliciousness is alleged.

Imbler v. Pachtman, 424 U.S. 409 (1976); Rhodes v. Hous-

ton, 202 F. Supp. 624, 633 (U.S.D.C. Neb.), aff’d 309 F.2d

959 (C.A. 8th Cir. 1962), cert. denied 372 U.S. 909 (1963),

cert. denied 383 U.S. 971 (1966); White v. Bloom, 621 F.2d

276, 280 (C.A. 8th Cir. 1980). Similarly, a quasi-judicial

form of immunity extends to police and other court offi-

cers for purely ministerial acts where they do nothing

other than perform court orders. Rhodes, supra, 202 F.

Supp. at 636; Duba v. McIntyre, 501 F.2d 590, 592 (C.A.

8th Cir. 1974); Hevelone v. Thomas, 423 F. Supp. 7, 9 (U.S.

D.C. Neb. 1976).

The defendants Douglas and Moravec are sued solely

in their official capacities as attorney general and county

attorney. There is no allegation that they ever acted out-

side of their official capacities; indeed, although para-

graph 85 of the amended complaint seeks damages from

all of the defendants, the plaintiffs’ brief says explicitly

that the only remedy sought against these two defendants

is declaratory and injunctive relief and attorney’s fees.

Moravec has filed an affidavit, filing 12, which says that

his only connection with this incident was to seek an in-

junction in his capacity as county attorney. Douglas and

Moravec are absolutely immune; the monetary damages

claims against them will be dismissed.

The defendants Tesch, Syslo, and Shelbourn also are

entitled to absolute immunity, because their actions were

to enforce an injunction issued by a state court. In an

order dated September 11, 1981, Judge Raymond Case of

10a

the District Court of Cass County found the Faith Baptist

Church in contempt of court because it continued to oper-

ate the Faith Christian School with uncertified teachers

and directed Sheriff Tesch to “procure and install addi-

tional locks on each of the entrances to the church and

school, it being one building, and to keep the building se-

cured.” The judge said that the building was to be un-

locked Saturday, Sunday, and such other times as church

services were to be held. However, the order directed the

sheriff to “secure the building by the placing of locks on

each of the entrances to the church; the building to be open

on Saturday, Sunday, and Wednesday evenings for the

singular purpose of religious services.” Exhibit B to fil-

ing 8. That order was later withdrawn.

On October 14, 1982, Judge Case reinstated his Sep-

tember 11 order, directing the sheriff to secure the build-

ing, to open it on Wednesday evenings and weekends, and

to prevent the operation of a school in the building each

Monday through Friday; Sheriff Tesch was ordered:

“. .. to enforce the Order of this Court prohibiting

the operation of a non-approved school, the first en-

forcement thereof to be exercised Monday, October

18, 1982; it being the intent of the Court that the par-

ents of children attending thereat shall have advance

notice of the action taken by the Court.”

It is not clear what notice the defendants in that ac-

tion received of the hearing of the order itself. The

plaintiffs here have submitted with their brief a purported

copy of a letter dated October 6, 1982, to Judge Case which

says that the defendants in the state case had not received

formal notification of the motion requesting an injunction.

The exhibit, marked “D,” has not been filed with this

———- >

lla

court, nor has its authenticity been established by any

form of affidavit or notarization. Even if I could use it

as evidence, it would only establish that as of October 6,

1982, the defendants in the state case did not know of the

motion for an injunction; it does not show that they did

not learn of the October 14, 1982. injunction or that they

did not have an opportunity to contest the injunction.

The amended complaint alleges that at 6:09 a.m. on

October 18, 1982, law enforcement officers invaded the

church, removed the plaintiffs, and padlocked the church.

This is no more than the two court orders required the

defendants to do. The court directed the defendants to

padlock the entire building beginning October 18, and they

did. Obviously, the defendants could not execute the in-

junction and padlocked the building without removing all

the people in the building. Hevelone v. Thomas, supra,

493 F. Supp. at 9. Although the plaintiffs allege that the

defendants’ actions disrupted a church service, this does

not abrogate the defendants’ immunity. Judge Case’s or-

ders did not give the sheriff the authority to decide that

the building should not be padlocked because it was being

used for church services, nor did they say that the sheriff

could choose to padlock the building if he believed that

terminating the church service was necessary to prevent

the operation of the school later in the day. Therefore,

the plaintiffs’ citation of De Jonge v. Oregon, 299 U.S. 353

(1937), and Hague v. Committee for Industrial Organiza-

tion, 307 U.S. 496, 516 (1939), is not relevant. In Hague,

a city official could deny a meeting permit if in his mere

opinion doing so would prevent a riot, a situation the court

said created an instrument of arbitrary suppression. 307

U.S. at 516. Here, the sheriff did not have discretion to

12a

allow certain activities in the building but not others; he

was to padlock the church on October 18. In De Jonge,

the defendant was arrested solely because he attended a

peaceful meeting held by the Communist Party. The

plaintiff were not arrested nor were they removed from

the church because they were attending a church service;

they were removed to enforce an injunction against the

operation of a school.

The plaintiffs argue that if Judge Case’s orders did

authorize the interruption of a church service, then they

were unconstitutional. That argument is of no use here.

First, I cannot determine whether the injunction was con-

stitutional. It was issued by a state court, and the proper

way to contest its constitutionality is to appeal it to the

Supreme Court of Nebraska. <A federal district court can-

not hear an appeal from a state court. District of Colwm-

bia Court of Appeals v. Feldman, 51 U.S.L.W. 4285, 4291

(March 23, 1983). Second, even if I could hold the law

unconstitutional, that would not affect the defendants’

immunity. An injunction issued by a state court which

had proper jurisdiction must be obeyed unless it is trans-

parently invalid or based on frivolous pretenses. Walker

v. City of Birmingham, 388 U.S. 307, 315 (1967). The in-

junction was issued by a court with jurisdiction, and it was

not transparently invalid. Cf. Walker, supra, at 317 (in-

junction against march by civil rights group “unquestion-

ably subject to substantial constitutional question” yet not

transparently invalid). Sheriff Tesch had no choice but

to obey it.

The plaintiffs argue that Judge Case’s order was ob-

tained without procedural due process and point out that

counsel for the church had protested to the court that he

tee ies

nA Ne PRN AT RON ce Bat aN aE th ik te RY Se

i AAS Ail Ue SAN MRE HA i mM

13a

had not as of October 6, 1982, received notice of the mo-

tion for the injunction, contending that this shows that

the order was an unconstitutional ex parte restraint of

First Amendment freedoms. Carroll v. Commissioners of

Princess Anne, 393 U.S. 175, 180 (1968).

Even if that be true, I do not have the authority to

overturn a state court injunction by means of a collateral

attack on it. Also, I do not know whether the defendants

who were enjoined had notice of the injunction and hear-

ing, as I have already pointed out. I would point out

further that the plaintiffs here do not have standing to

contest an injunction against the defendant parties in the

state court case, although I observe that no fewer than

eight of the plaintiffs in this case allege that they were

members of the Faith Baptist Church, which was a party

to the injunction, and that Ralph Liles, a plaintiff in this

case, was named as a defendant in the caption of the Sep-

tember 11 order (the caption of the October 14 order does

not list all of the defendants). Finally, the plaintiffs’ ar-

gument ignores the reality of the situation. The sheriff

had been ordered to padlock all entrances to the building

and he obviously had to remove everyone in the building,

whether they were party to the court’s injunction or not.

There is no indication in the record that the defendants

prevented the plaintiffs from assembling elsewhere to

conduct a religious service or that the defendants incar-

cerated the plaintiffs. Indeed, the amended complaint

indicates that the defendants merely removed the plain-

tiffs and prevented them from reentering the church.

I do not doubt that the plaintiffs have a constitutional

right to assemble in order to exercise their religion, but I

am not at all sure that they have a right to assemble for

l4a

religious purposes on the particular piece of private prop-

erty that they chose to use. If Judge Case had closed the

church for violating local building, fire and safety codes,

for example, I do not see how those plaintiffs who are not

members of the church would be free to assemble there.

In a sense, the right of nonmembers to assemble in the

church derives from the right of the church’s members to

assemble there. Certainly, the rights of nonmembers to

use church property cannot be greater than the rights of

the church’s members. Therefore, if an injunction limited

the uses to which church members could put the property,

it must also limit the uses to which nonmembers can put

the property.

The defendants suggest that the plaintiffs were not

denied their constitutional rights, because the injunction

was a legitimate time, place and manner restriction, see

Adderly v. Florida, 385 U.S. 39 (1966), and that the court

order served a significant government interest in prevent-

ing the violation of state education laws. Again, because

I do not have the authority to determine the validity of

the state court’s orders, I shall not comment on this ar-

gument.

The defendants Tesch, Shelbourn, Syslo, Moravec and

Douglas are absolutely immune from the plaintiffs’ claim

for damages; Count I will be dismissed.

Count IT of the amended complaint alleges that the

defendants will continue to violate the plaintiffs’ rights

and requests a permanent injunction which would prohibit

the defendants from padlocking the church and otherwise

interfering with the constitutional rights of the plaintiffs

and other worshipers. I shall dismiss this count against

he ON, he hana SBM NBT fie mec Pa em

15a

all of the defendants, because under the principles of

Younger v. Harris, 401 U.S. 37 (1971), I do not have the

authority to issue an injunction which would interfere with

state court proceedings.

To understand my concern, a review of the litigation

surrounding the Faith Baptist School is necessary. Sev-

eral years ago the District Court of Cass County enjoined

the operation of an elementary school by Faith Baptist

Church and the Church’s officers and employees, including

the Reverend Everett Sileven. The Supreme Court of

Nebraska affirmed that injunction and upheld the consti-

tutionality of the school certification laws upon which the

injunction was based. State ex rel. Douglas v. Faith Bap-

test Church, 207 Neb. 802, 301 N.W.2d 571 (1981). The

Supreme Court of the United States dismissed the defend-

ants’ appeal for want of a substantial federal question.

Faith Baptist Church v. Nebraska ex rel. Douglas, 454

U.S. 803 (1981).

On March 27, 1981, the state district court again en-

joined the church, the school. and several individuals from

further operation of a private school or the use of church

property for the operation of a private school until they

complied with Nebraska law. Once again on September

11, 1981, the state district court enjoined the operation of

the school and ordered the building padlocked. Apparent-

ly, Sileven appealed the injunction, but his appeal was

dismissed hecause he failed to file briefs. See Sileven v.

Tesch, 212 Neb. 880, 882. 326 N.W.2d 850, 852 (1982). Sev-

eral members of the church sought an injunction in federal

district court against Cass County and county attorney

Moravee which would prevent the defendants from pro-

hibiting the school’s operation. Judge Robinson rejected

}

l6a

the request and dismissed the lawsuit. Prettyman v State

of Nebraska, County of Cass, 537 F. Supp. 712 (U.8.D.C.

Neb. 1982). A series of legal proceedings then transpired

in the state district court, and Sileven was arrested and

jailed on September 3, 1982. Both the Supreme Court of

Nebraska and this court denied Sileven’s petitions for

habeas corpus. Sileven v Tesch, 212 Neb. 880, 326 N.W.2d

850 (1982): Sileren v Tesch, CV82-0-712 (U.S.D.C. Neh.

1983). Meanwhile, the state district court reinstated its

order of September 11, 1981, and ordered the sheriff to

padlock the building which housed the church and school

on October 18, 1982. On October 20, 1982, Judge Case en-

tered an order which stated:

“ .. there are going to be large groups who have

traveled long distances who are non-residents of the

State of Nebraska whose purposes are to resist the

laws of this state as interpreted by the courts thereof,

and... the potential for violence is creat.

“The Court further finds that enforcement personnel

are insufficient in number to cope with the potential

violence and... the enforcement orders of Septem-

ber 11, 1981 and Octoher 14, 1982, should he suspended

until further order of this Court.”

On November 29, 1982, county attorney Moravee ap-

plied for a warrant for Sileven’s arrest, alleging that Sil-

even had resumed operation of the school. The last page

in the presumably partial record from the state district

court, Exhibit B to filing 8, indicates that Judge Case is-

sued the requested warrant on November 29, 1982. There

are no other court documents available to me which would

indicate the current status of those proceedings.

I believe that I must conclude that issuing the injunc-

tion requested by the plaintiffs would interfere in an on-

17a

going state proceedings. The Supreme Court of Nebraska

has declared that the Faith Baptist Church may not op-

erate a school under certain conditions, and a lower state

court repeatedly has issued injunctions to that effect.

Two of those injunctions directed the sheriff to do pre-

cisely what the plaintiffs in this case would have me order

him not do— i.e., padlock the building used for the church

and school. There is no indication that the state court

has released jurisdiction of the action against Faith Bap-

tist and there are strong indications that it may again use

the injunctive relief which the plaintiffs contest. Indeed,

the plaintiffs’ brief says that the plaintiffs seek to deter-

mine the validity of the orders that have been issued and

any similar future orders. The term “proceedings” is to

be read broadly as including all steps taken or which may

be taken in or by the state court from the institution to the

close of the final process. Hill v. Martin, 296 U.S. 393, 403

(1935). A plaintiff cannot circumvent matters by seeking

to prohibit use of the results of a completed state court

proceeding. /d., quoting Atlantic Coast Line R.R. Co. v.

Brotherhood of Locomotive Engineers, 398 U.S, 281, 287

(1970).

Here, the plaintiffs’ requested injunction would inter-

fere with a state court’s ability to enforce its judgment

and thus with an ongoing state proceeding. That inter-

ference is prohibited by the doctrine established in Younger

v Harris, supra, which proscribes a federal court from en-

joining pending state criminal proceedings, except under

extraordinary circumstances where the danger of irrepar-

able loss is both great and immediate. 401 U.S. at 43-54.

Younger’s principles have since been expended to include

cases involving the contempt power of a state court, Jui-

18a

dice v Vail, 430 U.S. 327, 335 (1977), and civil enforcement

actions brought by a state in its sovereign capacity. Train-

or v Hernandez, 431 U.S. 434 (1977). Both of these types

of actions are present here.

A Younger analysis in this case is somewhat compli-

cated by the fact that some of the plaintiffs were not par-

ties to the state court proceedings against Faith Baptist

Church and some were. For the record, I point out that

the plaintiffs Billy Arnold, Charles and Jesse Day, Phillip

A. Schmidt, Harvey Schulz, Gary Lee Peterson, Ralph L.

Liles, Phillip Liles, and Jean Perry allege that they are

members of the Faith Baptist Church. The state court

proceedings which produced the injunction in question

name the Faith Baptist Church, a corporation, as one of

the defendants. Ralph L. Liles, a plaintiff in this action,

is named defendant in the state court action and a plaintiff

in Prettyman, supra.

In Hicks » Miranda, 422 U.S. 332 (1975), the court

held that a federal district court should have abstained

from considering a theatre owner’s federal suit where

state criminal proceedings were pending against two of the

theatre’s employees. The court said that Younger applied,

because the owner’s interests and those of his employees

were intertwined and that the owner was attempting to

interfere with the pending state criminal prosecution

against his employees through the federal suit. 422 U.S.

at 348-349. Later, in Doran v Salem Inn, Inc., 422 US.

922, 928-934 (1975), the court said that where a state crim-

inal proceedings had been started against only one of the

three federal plaintiffs, all of whom were tavern-operat-

ing corporations, Younger did not prevent the other two

19a

from seeking an injunction. 422 U.S. at 928-929. How-

ever, the court observed that there plainly may be some

circumstances in which legally distinct parties are so

closely related that they should all be subject to the

Younger considerations which govern any one of them;

this was not true in Doran, because each of the corpora-

tions was owned and operated independently of the others.

Id.

The Eighth Cireuit Court of Appeals has considered

the issue of intertwined interests in two cases. In Stivers

v. Minnesota, 575 F.2d 200 (1979), cert. denied 439 U.S.

1127 (1979), Divorce Education Associates, Inc. was sued

in state court for the unauthorized practice of law. Several

of the corporation’s members then sued in federal court,

alleging that the state proceeding threatened their in-

volvement in the corporation. The court held that Younger

applied, because the interests of the parties seeking relief

in federal court were closely related to those of the parties

in state court and the federal action sought to interfere

with the pending state proceedings. The court also noted

that the federal plaintiffs had not attempted to distinguish

their interests from the interests of the state court parties.

575 F.2d at 203.

The circuit court reached the opposite result in

Womens Services, P.C. v. Douglas, 653 F.2d 355 (1981).

Womens Services had challenged the constitutionality of

three abortion statutes in federa! district court after the

state started criminal proceedings against a doctor em-

ployed by Womens Services. The court’s opinion explicitly

said that the crucial factor in the case was the fact that

Womens Services did not seek to enjoin the state criminal

proceeding against the doctor. The court also said that the

20a

injunction requested in federal court would protect only

Womens Services while leaving the state free to continue

its prosecution of the doctor. The court pointed out that

the doctor had been charged under two state statutes but

that Womens Services was also challenging a third sta-

tute, which the doctor lacked standing to challenge. 653

F.2d at 356, 359.

In the case here, the interests of the parties seeking

federal relief are closely related to those of the parties in

state court, and the federal plaintiffs have made no at-

tempt to distinguish themselves from the state court par-

ties, Indeed, in their brief at page 10 the plaintiffs speci-

fically say that they seek to determine the validity of the

injunction issued against the state parties. This factor

also distinguishes this case from Womens Services, for

the federal plaintiffs here are asking me to review the

validity of the state proceedings against Faith Baptist

Church and Sileven and are seeking an injunction, the

practical effect of which would be to deprive the state

court of one of the enforcement mechanisms it has re-

peatedly used against the state parties. Unlike Womens

Services, granting the federal plaintiffs’ injunction here

would not leave the state free to pursue its action against

the state parties. The other difference is that while Wo-

mens Services challenged a statute which the doctor in

state court did not have standing to challenge, the federal

plaintiffs in this case are challenging, in effect, the spe-

cific injunction which was issued in the state court pro-

ceedings. I concluded that the federal plaintiffs in this

ease and the defendants in the state court proceedings

are sufficiently intertwined to invoke the application of

the Younger doctrine.

21a

It is true that Younger would not apply if I were to

find that the state court proceedings were motivated by

a desire to harass, had been conducted in bad faith, or

were based on a statute which is flagrantly and patently

violative of express constitutional provisions in every

clause, sentence and paragraph. Juidice v Vail, supra,

430 U.S. at 338. But that is not the case here; each step

in the process has been authorized by court order, and the

statute in question is not flagrantly violative of an express

constitutional provision. See Hicks v Miranda, supra, at

351-352, and Grandco Corp. v Rochford, 536 F.2d 197, 202

(C.A. 7th Cir. 1976) (Younger applied even where state

law was unconstitutional).

Finally, I note that the amended complaint adds Cass

County as a defendant. Nothing in the amended complaint

identifies any action, custom or policy of the county which

allegedly deprived the plaintiffs of their constitutional

rights. Indeed, the only reference to the county in the

body of the amended complaint is an allegation that the

county is a political subdivision of the State of Nebraska.

I shall dismiss the county as a defendant. Prettyman, su-

pra, 537 F. Supp. at 716. See, generally, Baker v McCol-

lan, 443 U.S. 137, 145 (1979).

Dated July 28, 1983.

BY THE COURT

/s/ Warren K. Urbom

Chief Judge

22a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CV82-L-659

ROBERT E. McMURRY, et al,

, Plaintiffs,

vs.

FRED TESCH, et al,

Defendants.

ORDER OF DISMISSAL

(Filed July 28, 1983)

For the reasons stated in the accompanying memoran-

dum,

IT IS ORDERED that the motions of the defendants

Tesch, Shelbourn, Douglas, Syslo, Moravec, and Cass

County to dismiss, filings 8, 9, 10, 11, 12 and 13, respec-

tively, are granted and the action is dismissed.

Dated July 28, 1983.

BY THE COURT

/s/ Warren K. Urbom

Chief Judge

Entered on the Docket July 28, 1983

William L. Olson, Clerk

By Patricia L. Nelson, Dep. Clerk

23a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CV82-L-659

ROBERT E. McCURRY et al,

Plaintiffs,

Vs.

FRED TESCH, et al,

Defendants.

ORDER

(Filed July 29, 1983)

IT IS ORDERED that the memorandum on motions

to dismiss, dated July 28, 1983, is amended in that the last

word in the first paragraph of page 1 is changed from

“church” to “school.”

Dated July 29, 1983.

BY THE COURT

/s/ Warren K. Urbom

Chief Judge

24a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 83-2191

Robert E. McCurry; H. Edward Rowe; Richard C. Moore;

Greg Dixon; Dennis Brown; Robert A. Collins; Richard

L. Weightman; Dennis A. Corle; Daniel Eylar; David A.

Eylar; Carroll L. Torberson; Carlton Curtis; Mark A. Bil-

brey; Olin R. Adams; Billy Arnold; Gary L. Arnold;

Michael S. Backhaus; Bill G. Brewer; Price Brown; Rich-

ard A. Cloyed; John W. Curtis; Charles Day: Jesse Day:

Stephen L. Ferguson; J. Michael Gibbs; Earl Hargis;

Allen R. Kincaid; Francis J. Kuhlman: Larry L. Lautaret;

Carl W. Laurent; David H. Lydick; Richard May: George

F. Monday; Gerald L. Pope; Erie L. Rist; Philip A.

Schmidt; Tumis Schurman; Clifford Sims; Dennis A.

Sims; Harry R. Smith; Dale R. Spear; Edward L. Thi-

bodeauz: Ronald L. Tottingham; Gary J. Uit De Flesch;

Leslie A. Warren; Jerry West; Gary H. Williams; Sam-

uel L. Woodruff; Dennis FE. Fountain; Carl Spencer, Jr.;

Harvey Schultz; Gary Lee Peterson; Ralph H. Liles;

Michael McKinney; Alfred J. Riley: Dale K. Dykema;

Brandon Dykema; Howard Quinlan; Robert Muncaster;

Gary Lee Ashford; H. Lynn Bowen; Richard Gregory;

Michael Wolfram; Herbert Lawson; Phillip Liles: and

Jean Perry,

Appellants,

Fred Tesch, in his official capacity as Sheriff of Cass

County, Nebraska, and individually; Larry Shelbourn, in

his official capacity as Chief Deputy Sheriff of Cass Coun-

ty, Nebraska, and individually; Raymond Syslo, in his offi-

cial capacity as a Captain of the Nebraska State Patrol,

and individually; Ronald D. Moravec, in his official ca-

pacity as Cass County Attorney; Paul L. Douglas, in his

official capacity as Attorney General of Nebraska,

Appellees.

25a

On Appeal from the United States District Court

for the District of Nebraska

Submitted: February 17, 1984

Filed: June 29, 1984

Before BRIGHT, ARNOLD, and FAGG, Circuit Judges.

ARNOLD, Circuit Judge.

This case arises out of a longstanding dispute between

the State of Nebraska and the Faith Baptist Church of

Louisville, Nebraska, concerning the church’s operation of

a school without complying with Nebraska school laws.

Litigation began when the state obtained an injunction in

state court prohibiting the operation of the school. The

Nebraska Supreme Court affirmed, holding that enforce-

ment of the school laws did not violate the defendants’

rights of freedom of religion. State v. Faith Baptist

Church, 207 Neb. 802, 817, 301 N.W.2d 571, 580, appeal

dismissed for want of a substantial federal question, 454

U.S. 803 (1981).

Following this decision, the state trial court found

that the school was still being operated. in violation of the

injunction and entered an order which provided, in per-

tinent part,

[A]s a means of enforcing its judgment [the Court]

directs the Sheriff of Cass County to procure and

install additional locks on each of the entrances to

26a

the church and school, it being one building, and to

keep the building secured. The building is to be un-

locked Saturday and Sunday and such other times as

the building shall be used for the holding of church

services.

- * *

The sheriff is further authorized to designate

authority to his deputies or others for the patroling

and or opening and closing of the building for the

purposes indicated.

IT IS THEREFORE ORDERED, ADJUDGED

AND CONSIDERED by the Court that the defend-

ants, Reverend Everett Sileven and Faith Baptist

Church, are in contempt of the orders of this Court

and that the Sheriff of Cass County shall forthwith

secure the building by the placing of locks on each

of the entrances to the church; the building to be

opened on Saturday, Sunday and Wednesday even-

ings for the singular purpose of religious services.

Order of September 11, 1981, Designated Record (D.R.)

44, The Reverend Mr. Sileven, pastor of the Church, and

certain other defendants appealed this order to the Ne-

braska Supreme Court, but their appeal was dismissed

for failure to file briefs. Sileven v. Tesch, 212 Neb. 880,

882, 326 N.W.2d 850, 852 (1982).

Meanwhile, the state court had told the sheriff not to

enforce the September 11, 1981, order. But when the

judge learned that the school had been reopened onec

more, he ordered Mr. Sileven jailed for contempt and

entered another order, which provided, in pertinent part,

that the initial Order of September 11, 1981, directing

the sheriff to secure the school building should be re-

instated, directing the sheriff to secure the school

building, the orders of this Court prohibiting the op-

eration of a school for the teaching of non-religious

Ss wee

es ee eee eee eee ee

27a

subjects to be enforced. The building shall remain

open on Wednesday evenings and throughout the

weekend, the sheriff to withdraw security on Friday

evenings at 5:00 p.m. and to enforce the order pro-

hibiting the operation of a school on each Monday

through Friday until further order of this Court.

IT IS THEREFORE ORDERED, ADJUDGED

AND CONSIDERED by the Court that the Order of

this Court entered September 11, 1981, shall be rein-

stated, the Sheriff of Cass County and his enforce-

ment personnel to enforce the Order of this Court

prohibiting the operation of a non-approved school,

the first enforcement thereof to be exercised Monday,

October 18, 1982; it being the intent of the Court that

the parents of children attending thereat shall have

advance notice of the action taken by the Court.

Order of October 14, 1982, D.R. 65-66.

Shortly after 6:00 in the morning of October 18, 1982,

the sheriff arrived at the church with fifteen carloads of

deputies and state troopers. About 85 persons, including

the plaintiffs here, were conducting a ‘‘prayer vigil,’’

singing, preaching, reading the Bible, praying, and so

forth, to protest the jailing of Mr. Sileven and the closing

of the school. No school children were present, and no

classes were being held. When the worshippers refused

to leave, the law-enforcement officers picked them up,

carried them out of the church, and padlocked the build-

ing.

The plaintiffs brought this suit under 42 U.S.C. § 1983

(1982) in the United States District Court for the District

of Nebraska against the county, the state attorney general,

the county attorney, and the sheriff and two other law-

enforcement officers. The plaintiffs sought declaratory

end injunctive relief and damages from the sheriff and

28a

two other law-enforcement officers. The District Court

dismissed the complaint, holding that the law-enforcement

officers were absolutely immune from liability for dam-

ages and that the principles of Younger v. Harris, 401

U.S. 37 (1971), prevented the court from granting prospec-

tive relief. The plaintiffs appeal. We reverse.

I. THE DAMAGES CLAIM

The District Court held that the state-court orders

of September 11, 1981, and October 14, 1982, required the

defendants’ actions here. Thus, relying on the principle

that ‘‘a quasi-judicial form of immunity extends to police

and other court officers for purely ministerial acts where

they do nothing other than perform court orders,” D.R.

88, the court held the law-enforcement officers absolutely

immune from liability for damages.’

The plaintiffs argue that the state-court orders did

not authorize their eviction from a church service; that if

they did, the orders would be unconstitutional; and that,

even if they were executing a court order, the law-enforce-

ment officers are not clothed with absolute immunity, but

rather with qualified, good-faith immunity. Since we

. The District Court also held that the defendants “<r>

immune because “‘[a]n injunction issued by a state court which

had proper jurisdiction must be obeyed unless it is transpar-

ently invalid or based on frivolous pretenses. Walker v. City

of Birmingham, 388 U.S. 307, 315 (1967).” D.R. 91. Walker,

however, merely held that the parties against whom an injunc-

tion was issued could be held in contempt for defying it. It

had nothing to do with a law-enforcement officer’s duty to

execute court orders. This is not a contempt proceeding against

the people who were in the church when the sheriff arrived.

29a

agree with the plaintiffs’ first two propositions, we need

not reach the third.’

A. The District Court’s Analysis

The District Court interpreted the state-court orders

to require the defendants to invade the church, remove the

plaintiffs, and padlock the church:

2 The scope of the so-called quasi-judicial immunity af-

forded law-enforcement and other officers who merely execute

court orders is unclear. The principle relied upon by the Dis-

trict Court was first enunciated in this Circuit in Rhodes v.

Houston, 202 F.Supp. 624, 636 (D. Neb.), aff’d per curiam, 309

F.2d 959 (8th Cir. 1962), cert. denied, 372 U.S. 909 (1963), and

has been repeated several times, see, e.g., Tymiak v. Omodt,

676 F.2d 306, 308 (8th Cir. 1982) (per curiam); Guzman v. Wes-

tern State Bank, 516 F.2d 125, 132 (8th Cir. 1975); Duba v. Mc-

Intyre, 501 F.2d 590, 592 (8th Cir. 1974) (per curiam), cert. de-

nied, 424 U.S. 975 (1976); Hevelone v. Thomas, 423 F.Supp.

7, 9 (D. Neb.) (alternative holding), aff'd per curiam, 546 F.2d

797 (8th Cir. 1976).

In Sebastian v. United States, 531 F.2d 900, 902 (8th Cir.)

cert. denied, 429 U.S. 856 (1976), however, we held that dep-

uty sheriffs who, pursuant to a court order, transported the

plaintiff to a mental hospital were immune because they “acted

at all times in good faith reliance on Arkansas law, without

reason to believe that the appellant had been committed with-

out notice and hearing.” Finally, we have “held that court func-

tionaries such as clerks are not clothed in [absolute] judicial

immunity because their duties are ministerial, not discretionary,

in nature,” McLallen v. Henderson, 492 F.2d 1298, 1299 (8th

Cir. 1974) (citation omitted), but rather are protected only by

a qualified, good-faith immunity, id. at 1300. But see Davis v.

McAteer, 431 F.2d 81, 82 (8th Cir. 1970) (“clerks of court are

entitled to immunity the same as judges.”’)

The conflict in these authorities may be more apparent

than real, particularly in light of the Supreme Court’s recent

revision of the definition of qualified immunity in Harlow v.

Fitzgerald, 457 U.S. 800, 815 (1982), but we need not resolve

the problem here. We merely note that we have never held

“that the unquestioning execution of a judicial directive may

never provide a basis for liability against a state officer.” Se-

bastian, supra, 531 F.2d at 903 n.6 (emphasis added).

30a

The court directed the defendants to padlock the en-

tire building beginning October 18, and they did. Ob-

viously, the defendants could not execute the injune-

tion and padlock the building without removing all

the people in the building... . Although the plain-

tiffs allege that the defendants’ actions disrupted a

church service, this does not abrogate the defendants’

immunity. Judge Case’s orders did not give the sher-

iff the authority to decide that the building should

not be padlocked because it was being used for church

services, nor did they say that the sheriff could choose

to padlock the building if he believed that terminating

the church service was necessary to prevent the oper-

ation of the school later in the day.

D.R. 90 (citation omitted). Although the District Court

held that it had no authority to rule upon the constitution-

ality of the orders thus construed, because ‘‘the proper

way to contest its constitutionality is to appeal it to the

Supreme Court of Nebraska,’’ ibid.,’ it said,

I do not doubt that the plaintiffs have a constitu-

tional right to assemble in order to exercise their

religion, but I am not at all sure that they had a right

to assemble for religious purposes on the particular

piece of private property that they chose to use.

D.R. 91.

od We d . District of Columbia Court of

Feldman, 103 S. Ct. 1303 (1983), which held that

trict courts do not have jurisdiction to review a state cou

a in a bar-admission matter, even if

2 s action is alleged to be unconstitutional, is not in

ntiffs here are seeking damages from and

rel net lnww-aniinocemhent eflicams’” Misvenver, meet

‘

Tit

plai were not parties to the state-court proceedin

could not have sought review in the Nebraska Court.

Accord, In re justices of the Supreme Court, F.2d 17, 26

(ist Cir. 1982).

dla

The defendants, of course, urge us to uphold this

analysis, and, at oral argument, elaborated on their inter-

pretation of the state-court orders. They assert that the

orders simply directed the sheriff to padlock the church

building and to open it only on Saturday, Sunday, and

Wednesday evenings. If the plaintiffs wished to worship

in the church at another time, for example, on Good Fri-

day, they would have to get permission from the state

court. The defendants agree with the District Court that

the orders, thus construed, are constitutional, because the

plaintiffs would be free to worship in any other place at

any other time they chose. To support this proposition,

the defendants point out that the state court would be

free to close the church for violations of a local fire code.

We reject these arguments. We hold that the state-

court orders did not authorize the law-enforcement of-

ficers’ action here. If the orders are ambiguous, they

should be construed against the authority asserted by the

state, because orders conferring such authority would be

unconstitutional. Thus, there is no ground for the appli-

cation of absolute “quasi-judicial immunity,” though, as

we make clear later, those defendants against whom dam-

ages are sought may have a defense of qualified immunity.

B. Interpretation Of The State-Court Orders

We do not believe that, by directing that the church

building be opened for religious services on Saturday, Sun-

day, and Wednesday evenings, the state court intended

that the building be padlocked at all other times. Other-

wise, the provision that “[t)he building is to be unlocked

32a

Saturday and Sunday and such other times as the build-

ing shall be used for the holding of church services,” Order

of September 11, 1981, D.R. 44 (emphasis added), would

be superfluous. Moreover, the state court emphasized

that its purpose was to secure the enforcement of its prior

judgment. That judgment simply enjoined the church

and certain individuals from operating the unapproved

school. It said nothing about prohibiting worship on the

premises. Finally, an order opening and closing the church

according to a strict timetable, without accommodating

the legitimate religious interests at stake, would be pat-

ently unconstitutional, and it is therefore our duty to con-

strue the orders to avoid such a result.

The right to worship free from governmental inter-

ference lies at the heart of the First Amendment. It em-

braces not only the right to free exercise of religion, but

also the right to freedom of expression. The defendants’

argument that these rights would not be burdened by an

order restricting the times that the plaintiffs could hold

religious services in the church to weekends and Wednes-

day evenings, because the plaintiffs would be free to con-

gregate and worship elsewhere, misses the mark: “ ‘[O)}ne

is not to have the exercise of his liberty of expression in

appropriate places abridged on the plea that it may be

exercised in some other place.’” Schad v. Borough of

Mount Ephraim, 452 U.S. 61, 76-77 (1981) (quoting Schnet-

der v. State, 308 U.S. 147, 163 (1939)). This principle

applies with particular force to places, such as church

buildings, which have a special spiritual significance to

the persons who wish to worship there.

Of course, as we recently observed,

33a

[nJot all burdens upon religion violate the free exer-

cise clause. See United States v. Lee, 455 U.S. 252,

257-58, 102 S. Ct. 1051, 1055, 71 L.Ed.2d 127 (1981).

The state may justify a limitation on religious liberty

by showing that it is the least restrictive means of

achieving a compelling state interest. Thomas v. Re-

view Board, (450 U.S. 707, 718, 101 S. Ct. 1425, 1432

(1980)}. In articulating the standard the state must

meet, the Supreme Court has said that “only those

interests of the highest order and those not otherwise

served can overbalance legitimate claims to the free

exercise of religion.” Wisconsin v. Yoder, [406 U.S.

205, 215, 92 8. Ct. 1526, 1533 (1971)].

Quaring v. Peterson, 728 F.2d 1121, 1126 (8th Cir. 1984).

We assume that the state’s interest in preventing the oper-

ation of the unapproved church school is a compelling one.

That interest does not in any event justify hauling wor-

shippers out of an ongoing church service. The state

could simply prevent school-age children from entering

the building during school hours. Even if the state were

to padlock the church and open it only when persons wished

to enter in order to hold religious services, the burden on

religious freedom would be less drastic than the action

taken here. Thus, the state-court orders, if given the in-

terpretation advanced by the defendants, would not be

tailored narrowly enough to pass constitutional muster.

Nor can the orders’ validity be saved by construing them

to give the state court, on application of the church, power

to open the church doors on any given day. It is no part

of the business of government in this country to decide

when people may go to church. The First Amendment

protects prayer at six o’clock on Monday morning just as

much as at eleven o’clock on Sunday morning.

Because the state could achieve its objectives by less

restrictive means, the defendants’ analogy to fire-code vio-

34a

lations is inappropriate. The state would not be able to

fulfill its objective of protecting the public from the haz-

ards presented by fire-code violations in any way other

than closing the building; the building would not be safe

for any purpose.

This distinction was drawn in a recent Eleventh Cir-

cuit case, Grosz v. City of Miami Beach, Florida, 721 F.2d

729 (11th Cir. 1983). In Grosz the plaintiffs, Orthodox

Jews, held religious services at least twice daily in their

home in violation of an ordinance which prohibited church-

es and synagogues in areas zoned for single-family resi-

dential use. The plaintiffs’ neighbors were disturbed by

chanting and singing, people asking for directions, and the

occasionally large numbers of worshippers in attendance.

The plaintiffs brought suit in federal court seeking to en-

join the city from prosecuting them for violating the zon-

ing ordinance.

The Eleventh Circuit denied relief. Reasoning that,

in free-exercise cases, government interests must be bal-

anced against the impugned religious interest, the court

observed that “where the government suffers no burden

in changing its actions to accommodate religious onduct,

any sectarian interest regardless of how lightly it weighs

wins the balancing.” Jd. at 734. The court held, however,

that the city could not achieve its objectives in any manner

less burdensome to the plaintiffs’ interests. Jd. at 738. On

the other hand, the plaintiffs could conduct services in

other areas of the city in which religious institutions could

lawfully operate, and one such area lay within four blocks

of their home. Weighing these considerations, the court

struck the balance in the city’s favor.

35a

Here, we need not consider whether alternative sites

for worship would be open to the plaintiffs. Our inquiry

ends with the holding that the state could achieve its ob-

jectives in a way less burdensome to the free exercise of

religion.

Since we hold that the state-court orders did not au-

thorize the law-enforcement officers’ actions here, those

actions cannot be characterized as ministerial or merely in

obedience to court directives. Thus, there is no basis for

the application of absolute, quasi-judicial immunity. Fur-

ther, our discussion in Part 1.B., supra, demonstrates that

the officers’ conduct violated the plaintiffs’ constitutional

rights. Nonetheless, the officers may have a qualified im-

munity from liability for damages. On remand the Dis-

trict Court may, upon a proper motion, grant summary

judgment in favor of the officers if it finds that the offi-

cers’ conduct did not violate “clearly established constitu-

tional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).*

Il. PROSPECTIVE RELIEF

In the course of reinstating the damages claim, we

have held that the officers’ action was unconstitutional.

Since this amounts to a declaratory judgment and since

4 The fact that the officers acted under color of the state-

court orders will be relevant to this inquiry. There may be

enough ambiguity in the orders to warrant a determination by

the District Court that the defendants reasonably believed that

the orders mandated the action taken here and that the action

was constitutional because a judge had ordered it.

36a

the damages claim is now back in the case, there is no basis

for abstention on the claims for prospective relief. On

remand the District Court should enter a declaratory judg-

ment in favor of the plaintiffs and address the issue of

the defendants’ qualified immunity. The plaintiffs indi-

cated at oral argument that injunctive relief might not be

necessary, and we leave that determination to the District

Court’s discretion.

Accordingly, the judgment of the District Court is re-

versed and the cause remanded for proceedings consistent

with this opinion.

FAGG, Cirenit Judge, dissenting.

I respectfully dissent. In my view, the district court’s

dismissal of plaintiffs’ damage claims against the law en-

forcement officers was proper.

I take issue with the court’s conclusion that the law

enforcement officers were not acting in obedience with the

orders issued by the state judge. In the September 11,

1981 order the judge issued the following command:

IT IS THEREFORE ORDERED, ADJUDGED AND

CONSIDERED * * * that the Sheriff * * * shall forth-

with secure the building by the placing of locks on

each of the entrances to the church; the building to be

open on Saturday, Sunday and Wednesday evenings

for the singular purpose of religious services.

On October 14, 1982, the state judge reinstated his

prior order and gave the following command to the Sheriff:

IT IS ORDERED, ADJUDGED AND CONSIDERED

* * * that the Order of this Court entered September

11, 1982 shall be reinstated, * * * the first enforcement

thereof to be exercised on Monday, October 18, 1982

alla all

37a

When these commands are read in a straightforward fash-

ion, the officers were faced with an unpopular but clearly

stated assignment. They were charged by a state judge

with the responsibility to close and lock a church build-

ing on October 18, 1982, and to reopen it during specified

periods.

When the state judge finally reached the point in his

orders of directing the sheriff to take action, he did so

with explicit, clearly stated commands. In arriving at its

determination that the officers’ actions were at variance

with the orders, the court has failed to give the judge’s

clearly stated commands their proper weight. Instead, the

court has directed its focus upon a pre-order recital that

suggested generally that the church was to be open at such

times as church services were being held. The state judge,

however, translated this general statement into a very

specific judicial command to the sheriff; that the building

be locked at all times except Saturday, Sunday, and Wed-

nesday evenings. The specific command did not leave the

sheriff with discretion to permit religious services at any

other times. The directions that were actually given to the

sheriff clearly refute the court’s statement that ‘‘[wle do

not believe that by directing that the church building be

open for religious services on Saturday, Sunday, and Wed-

nesday evening, the state court intended that the building

be padlocked at other times.” Ante at 8. Simply stated,

the court is not in a position to rely upon a generalized

pre-order recital for the purpose of construing the orders

to the officers’ detriment.

It is easy in hindsight to suggest that the officers

would have been well advised to wait until the prayer vigil

38a

was over until locking the building. Nevertheless, the

officers had to execute orders they did not draft and they

had to carry out commands which they did not issue. It is

too much to expect, as the court apparently does, that the

officers employ legal canons of construction to interpret

the orders issued by a state court judge. From the offi-

cers’ standpoint, the judge’s underlying intent and pur-

pose were not their concern; nor was it of any consequence

te the officers that judicial scholarship might be required

subsequently to harmonize a generalized recital that other-

wise “would be superfluous” or that the order would be

construed to avoid an unconstitutional result. Ante at 8.

Instead, the officers looked to the specific judicial com-

mand to ‘‘forthwith secure the building” and carried it

out to the best of their ability. I am convinced that in

locking the church building on October 18, 1982, the offi-

cers were acting in accordance with the specific judicial

commands of the state court.

Thus, I would reach the question of what type of im-

munity from damages liability is to be accorded law en-

forcement officers that are acting pursuant to court or-

ders. Judges acting within the scope of their authority

have been accorded absolute immunity from suits. Stump

v. Sparkman, 435 U.S. 349 (1978). Absolute immunity has

also been extended to prosecutors for their decision to

prosecute and their handling of the prosecution on the

theory that these activities are intimately associated with

the judicial function. Imbler v. Pachtman, 424 U.S. 409

(1976). The same protection has been extended to proba-

tion officers when preparing and submitting presentence

reports because the officer is performing a judicially re-

lated function. Spaulding v. Nielsen, 599 F.2d 728 (5th

OO oO

39a

Cir. 1979) ; Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970),

cert. denied, 403 U.S. 908 (1971). For the same reasons

that absolute immunity has been extended to prosecutors

and probation officers participating in the presentence re-

port process, I believe that law enforcement officers are

entitled to absolute immunity when they are carrying out

the orders of a court. See Tymiak v. Omodt, 676 F.2d

306, 308 (8th Cir. 1982); Hevelone v. Thomas, 423 F. Supp.

7,9 (D. Neb.), aff'd, 546 F.2d 797 (8th Cir. 1976).

Courts not only expect but are entitled to insist upon

an immediate, unquestioning enforcement of the court’s

directives. From the officers’ standpoint, they must stand

ready unhesitatingly to do what the judge tells them must

be done. It would be anomalous for the court to punish

obedient law enforcement officers by exposing them to civil

damage liability based upon the shortcomings of orders

drafted by absolutely immunizcd state judges. Further-

more, it would be unworkable for the officers to await in-

terpretations from federal appellate judges rendered long

after the orders were executed to learn whether they

will be civilly liable for performing an assigned duty. In

our judicial system, law enforcement officers are not privy

to the judicial intent or purpose upon which orders are

formulated; they are not allowed to reshape the judicial

command; they are not authorized to interpret the order

and then implement it in a fashion which coincides with

their perception. It is not the officers’ role to question

whether an order is the correct one under the law; in-

stead, their role is to execute the order as it is given.

In my view, law enforcement officers must be afforded

absolute immunity from liability for money damages when

BEST AVAILABLE COPY

40a |

they are executing court orders. I believe the officers’

function in executing court orders is intimately and vitally

associated with the judicial function. Courts have under-

standably been cautious in extending the protection of ab-

solute immunity, and public officials ‘‘who seek absolute

exemption from personal liability from unconstitutional

conduct must bear the burden of showing that publie policy

requires an exemption of that scope.” See Butz v. Econ-

omou, 438 U.S. 478, 506 (1978). I believe the law enforce-

ment officers have carried their burden in this case. |

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT

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APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1983

No. 83-2191

Robert EK. MeCurry, et al,

Appellants,

VS.

Fred Tesch, et al,

Appellees.

Appeal from the United States District Court

for the District of Nebraska

ORDER

At the direction of the panel, the word “patently” on

the next to the last line of P.8 of the slip opinion by this

Court on June 29, 1984 is hereby stricken.

August 24, 1984

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APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1983

No. 83-2191-NE.

ROBERT E. MeCURRY, ET AL.,

Appellants,

VS.

FRED TESCH, ETC., ET AL.,

Appellees.

Appeal from the United States District Court

for the District of Nebraska

The petition of appellees for rehearing en bane is

denied for the reason that the majority of the active judges

on the court have failed to vote in favor of the petition.

Judges Ress, John R. Gibson, Fagg and Bowman would

have granted the petition.

Petition for rehearing by the panel is also denied.

August 24, 1984

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APPENDIX I

Constitution, Article ILI (in part):

Section 1. The judicial Power of the United

States, shall be vested in one supreme Court, and in

such inferior Courts as the Congress may from time

to time ordain and establish. The Judges, both of the

supreme and inferior Courts, shall hold their Offices

during good Behaviors, and shall, at stated Times, re-

ceive for their Services, a Compensation, which shall

not be diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Consti-

tution, the Laws of the United States, and Treaties

made, or which shall be made, under their Authority ;—

to all Cases affecting Ambassadors, other publie Min-

isters and Consuls;—to all Cases of admiralty and

maritime Jurisdiction ;—to Controversies to which the

- United States shall be a Party ;—to Controversies be-

tween two or more States ;—between a State and Citi-

zens of another State;—between Citizens of different

States,—between Citizens of the same State claiming

Lands under Grants of different States, and between

a State, or the Citizens thereof, and foreign States,

Citizens or Subjects.

In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State shall

be Party, the supreme Court shall have original Jur-

isdiction. In all the other Cases before mentioned, the

supreme Court shall have appellate Jurisdiction, both

as to Law and Fact, with such Exceptions, and under

such Regulations as the Congress shall make.

Constitution, First Amendment:

_Congress shall make no law respecting an estab-

lishment 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,

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and to petition the Government for a redress of griev-

ances.

42 U.S.C. § 1983:

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, 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 Constitation and laws, shall be liable

to the party injured in an action at law. suit in equity,

or other proper proceeding for redress. For the pur-

poses of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be con-

sidered to be a statute of the District of Columbia.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.