# Petition for Writ of Certiorari — Tesch v. McCurry > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1801%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1211 ## Text - — w ie. ; " Us. 84-8977 [TT ED DEC $ 1984 TR ee. ALEXANDER L STEWAS, CLERK —————_ In The Supreme Court of the United States October Term, 1984 ry VV 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 fy Vv 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 i 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? il 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 iv 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) + V 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 vi 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. o 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) to 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 Vv 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). 6 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 7 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, ee 8 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, 9 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 10 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- 11 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- 12 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 13 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- 14 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 15 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 16 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 17 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- 18 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 19 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- 20 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). 21 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 i 22 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 23 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 24 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 wy 25 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 § 26 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 27 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 28 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 29 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’ Vv 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 la 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 2a 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— » 3a 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. 4a 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 ~—- . | 5a 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 6a 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. 7a 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 8a 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 9a 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. 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 ‘ 3 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 1, 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. a 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. C. 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 4la 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 42a 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 43a 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, 44a 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1801%3A1. Public record. Not legal advice.