Petition for Writ of Certiorari — Fields v. Rockdale County

Supreme Court brief1986

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D\ UTP Supreme Court, ts,

86 ~2 41 \ He RIDE D

AUG 18 1986

NO. evenrnen ae JOSEPH F. SPANIOL, JR,

In The

Supreme Court of the United States

October Term, 1986

fal

Ann P. Fields and Gerald Fields, Individually ;

and Life For God’s Stray Animals, Inc.,

Petitioners,

Rockdale County, Georgia; et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIKCUIT

ty.

KATHLEEN KESSLER

Carr & KESSLER

3384 Peachtree Road, N.E.

Suite 250

Atlanta, Georgia 30326

(404) 233-5008

ABRAHAM A, SHARONY

4721 Chamblee-Dunwoody Road

Suite 302

Atlanta, Georgia 30338

(404) 395-6576

Counsel for Petitioners

COCKLE LAW PRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTION PRESENTED

Whether the abstention doctrine should be so far ex-

tended as to require staie constitutional due process and

equal protection issues to be litigated in state forums be-

fore seeking relief in federal District Courts under similar

federal due process and equal protection provisions.

PARTIES

The parties to this petition are Ann P. Fields, Gerald

Fields, operators of the animal shelter Life For God’s

Stray Animals, Inc.; and Life For God’s Stray Animals,

Inc., a charitable, non-profit animal shelter located in Rock-

dale County, Georgia, Petitioners.

The Respondents are Rockdale County, Georgia; C.S.

Smith, Individually and as Chairman, Rockdale County

Board of Commissioners; and Randy Mills, Individually

and as Director, Rockdale County Planning and Develop-

ment Department.

ili

TABLE OF CONTENTS

Page

ok et 8 gh | | nr |

a Rai te eae ii

TABLE OF AUTHORITIES 00S iv

ramen pew

ee i

STATUTORY PROVISION AND ORDINANCE IN-

VOLVED

REASONS FOR GRANTING THE WRIT .WW.. 8

The Circuit Court’s decision conflicts with the de-

cisions of the United States Supreme Court:

The Supreme Court expressly disallowed absten-

tion where the only ‘‘state law’’ issue is the appli-

cation of state constitutional due process and

equal protection provisions similar to the federal

constitution .... 8

CONCLUSION . 21

Appendix, Part I, Cireuit Court Decision ................... App. 1

Appendix, Part II, District Court Decision... App. 13

Appendix, Part III, Court of Appeals Judgment

and Mandate SESE EL OT App. 24

Appendix, Part IV, Court of pees Order on

Rehearing NaN iitelace adie b sical spnensioshghi App. 26

Appendix, Part V, Excerpts from transcript ..... App. 27

TABLE OF AUTHORITIES

CASES

Pages

Avant v. Douglas Co., 243 Ga. 225, 319 S.E.2d 442

(1984) 12, 14, 20

Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399

(1975) 12,14

Chicago v. Atchison, Topeka & Santa Fe Railroad

Co., 357 U.S. 77, 78 S.Ct. 1063 (1958) .... 14

Duncan v. Poythress, 657 F.2d 691 (former 5th Cir.

1981), cert. granted, 455 U.S. 937, 102 S.Ct. 1426,

71 L.Ed.2d 647, cert. dismissed, 459 U.S. 1012,

103 S.Ct. 368, 74 L.Ed.2d 504 (1982) ____. 13, 20

Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct.

114 (1926) ... 19

Examining Board v. Flores de Otero, 426 U.S. 572,

96 S.Ct. 2264, 49 L.Ed.2d 65 (1976) _.. 12, 14,15

Gibson v. Jackson, 578 F.2d 1045 (5th Cir.1978),

cert. denied, 439 U.S. 1119, 99 S.Ct. 1028, 59

L.Ed.2d 79 (1979). ............. eRe ee & ST

Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177,

14 L.Ed.2d 50 (1965) 18

Harris County Commrs. Court v. Moore, 420 U.S.

77, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975) —............. 9,14, 15

Hawaii Housing Authority v. Midkiff. — U.S. —,

DOE Tae, Te Cele 10, 16, 18, 20

Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211 (1977),

Bh Bie 8 Bre 200 e viii een 17

Life For God’s Stray Animals, Inc. v. New North

Rockdale County Homeowners Association, —

Ga. — (Case #42473, Feb. 26, 1986) ...................... 5, 10, 21

Life For God’s Stray Animals, Inc. v. New North

Rockdale County Homeowners Association, 253

Ga. 551, 322 8.6.20 239 (1904) 5:7, 10, 11

TABLE OF AUTHORITIES—Continued

Pages

Middlesex County Ethics Committtee v. Garden

State Bar Association, 457 U.S. 423, 102 S.Ct.

a Fe RARE Be COMET oe 16, 17

Miofsky v. Superior Court of the State of Cali-

fornia, 103 F.2d 332 (9th Cir. 1963)... 18

Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60

ge 5, Ta Aan eR en 17

Railroad Comm’n. of Texas v. Pullman Co., 312

U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) 0. 18

Traughber vy. Beauchane, 760 F.2d 673 (6th Cir.

1985) 18

Village of Belle Terre v. Boraas, 416 U.S. 1, 94

S.Ct. 1536, 39 L.Ed.2d 797 (1974) ................. 19

Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct.

907, 27 L.Ed.2d 515 (1971) PERE ECE 9, 14, 21

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27

L.Ed.2d 669 (1971) 0. 16

Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391,

19 L.Ed.2d 444 (1967) .......... : 18

CONSTITUTIONAL PRovISIONS

United States Constitution

Fourteenth Amendment 0. 12

Constitution, State of Georgia

Article I, Section I, Paragraph I .. 4

Article I, Section IT, Paragraph TIT ow 4

TABLE OF AUTHORITIES—Continued

Pages

STATUTES

98 U.S.C. § 1254(1) > 3

PS U.S.C. §§ 1331, BEB nee eeennennnnnneennntnnnenmnnennntnnsnnsnnit 5

98 U.S.C. § 2283

42 U.S.C. § 1983 3, 9

ORDINANCE

Rockdale County Ordinance § 9-3009 .......... Si cutonacmaeale 3

AIRE en

In The

Supreme Court of the United States

October Term, 1986

Ann P. Fields and Gerald Fields, Individually ;

and Life For God’s Stray Animals, Inc.,

Petitioners,

Rockdale County, Georgia; et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

fa)

The Petitioners respectfully pray that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Eleventh Circuit

entered in this proceeding on April 8, 1986, issued as man-

date on June 4, 1986, and rehearing denied May 19, 1986.

OPINIONS BELOW

Appendix, Part I is the opinion of the Eleventh Cir-

cuit Court of Appeals vacating and remanding the opin-

ion of the District Court with directions to abstain to al-

low Petitioners to bring an action in state court under the

Georgia constitution’s equal protection and due process

clauses.

Appendix, Part IT is the opinion of the Dis«rict Court

granting a preliminary injunction and noting a reasonable

likelihood that Petitioners would prevail on the issue of

the unconstitutionality of the Rockdale County kennel

ordinance, which was written to apply to and exclude from

the county Petitioner’s shelter and no other kennel in

Rockdale County.

Appendix, Part ITI is the judgment of the Court of

Appeals dated April 8, 1986 and issued as mandate on June

4, 1986.

Appendix, Part IV is the Eleventh Circuit’s order

dated May 19, 1986, denying Petitioners a rehearing of

the abstention issue.

Appendix, Part V is excerpts from the transcript on

the hearing for the preliminary injunction before the

District Court.

ray

——

JURISDICTION

The judgment of the United States Court of Appeals

for the Eleventh Circuit was entered April 8, 1986, and

mandate issued June 4, 1986. App. III. Petitioners-Ap-

pellants’ motion for rehearing was denied on May 19, 1986.

App. IV. This petition was filed within 90 days of the

order of the Court of Appeals denying rehearing. The

jurisdiction of this Honorable Court is invoked under 28

U.S.C. § 1254(1).

STATUTORY PROVISION, ROCKDALE COUNTY

ORDINANCE AND GEORGIA CONSTITUTIONAL

PROVISION INVOLVED

42 U.S.C. § 1983, pertinent part:

‘*Every person who, under color of any ... ordinance

... Of any State... subjects, or causes to be subjected,

any citizen of the United States ... to the depriva-

tion of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity. or

other proper proceeding for redress. . .”’

Rockdale County Ordinance, § 9-3009. Maximum size

of kennels.

SECTION I

‘‘(a) A kennel is hereby defined to include the

keeping of dogs and/or cats for commercial, non-

commercial or charitable purposes at or on a particu-

lar location or site where said dogs or cats are re-

strained or confined within a fence, building, struc-

ture or other enclosure.

‘““(b) It shall be unlawful for any person, firm,

corporation, unincorporated association, partnership,

joint venture, charitable organization or other legal

entity to maintain or operate a kennel within Rockdale

County in which the number of dogs exceeds 150 in

number, or in which the number of cats exceeds 50 in

number.

‘‘(ec) In determining the population limits of a

kennel, joint ownership or joint control of separate

kennel sites or locations by the same person, firm,

corporation, unincorporated association, partnership,

joint venture, charitable organization or other legal

entity shall cause all dogs and/or cats involved in such

jointly owned or jointly controlled separate kennel

sites or locations to be added together and counted

as one kennel — if the kennel sites or locations are

located within one nautical mile of each other.

‘‘(d) This ordinance is intended to prohibit the

concentration of dogs and cats so that kennel opera-

tions shall not disturb the peace, tranquility, and ser-

enity of the various neighborhoods in this County and

further is intended to protect the public health, safety

and welfare relative to various diseases originating

with large concentrations of animals. This ordinance

shall be liberally construed to accomplish the forego-

ing intent and purposes.

SECTION 2

‘“‘This Ordinance is not intended to repeal or to

modify the zoning laws or regulatory ordinances of

Rockdale County relative to kennels and dogs or cats

but as supplementary thereto.

SECTION 3

‘‘This Ordinance shall be in force and take effect

upon adoption.

‘¢Adopted this 14th September, 1984.”’

Constitution, State of Georgia:

Article I, Section I, Paragraph I:

‘‘No person shall be deprived of life, liberty, or prop-

erty, except by due process of law.”’

Article I, Section I], Paragraph III:

“Protection to person and property is the paramount

duty of government, and shall be impartial and com-

plete.”

oc RS EL TAIT LS CRIM OS OT a SPN

STATEMENT OF THE CASE

This controversy arises over a Rockdale County or-

dinance to limit the number of animals per kennel to 150

dogs and 50 cats, regardless of the size of the tract of

land containing the animals. Petitioners’ animal shelter,

Life for God’s Stray Animals, Inc., contains approximately

1200 animals which they planned to move to a new shelter

of 220 acres.

The ordinance was created, drafted and passed within

10 days of a public announcement that Life for God’s

Stray Animals, Inc. intended to purchase 220 acres next

to the city/eounty dump on Miller Bottom Road in Rock-

dale County as a new site for their animals. App. 3, 28.

The shelter had been declared a nuisance in state court

at their old site (7.5 acres on Farmer Road), and ordered

to cease operations. The purchase of 220 acres on Miller

Bottom Road was the part of Petitioners’ “urgent efforts

to establish their kennel in a new location,” in order to

comply with the court’s order to move.! App. 20.

Petitioners filed a complaint in the District Court

for the Northern District of Georgia to have the kennel

ordinance declared unconstitutional based on federal ques-

tion jurisdiction and the Civil Rights statutes (28 U.S.C.

§§ 1331,1343). They alleged that the ordinance was a de-

nial of equal protection of the laws because only their

animal shelter was singled out for exclusion from the

county with no ‘‘rational basis.’’ They also alleged denial

‘Life For God's Stray Animals, Inc. v. New North Rockdale

County Homeowners Assoc. (two cases), — Ga. -—- (Case

#42473, Feb. 26, 1986) and 253 Ga. 551, 322 S.E.2d 239 (1984).

of procedural due process of law as the ordinance pre-

sumed that any animals in excess of the arbitrary limita-

tions contained in the ordinance would amount to a nui-

sance per se, without allowance for any evidentiary hear-

ing. App. 18-20.

The Chairman of the Rockdale County Commission

testified that the new 150/50 kennel ordinance applied only

to the new Miller Bottom Road site; no other existing

kennels came under this ordinance because all other exist-

ing kennels could be “grandfathered in”; as a result of

a survey conducted, no other kennel in Rockdale County

was subject to 150/50 animal limitations; that all exist-

ing kennels even had room to grow. App. 29, 30, 32.

“The intent to single out plaintiffs is evident both

from the testimony and from the argument of the county’s

counsel; as counsel said, ‘this ordinance addresses itself

to the Fields.’’’ App. 19.

Because of the ordinance’s presumptious and pre-

determination of nuisance per se if a kennel exceeds the

150/50 animal limitation. Rockdale County officials re-

fused the Fields all necessary development permits to

allow the Fields to move the animals to the new site at

Miller Bottom Road. App. 31-32. Thus, as late as the

hearings in this ease in February and March of 1980, the

Fields were unable to get permits to construct a new

shelter, move the animals, or abate the nuisance declared

by the Rockdale Superior Court against the Farmer Road

site. App. 31.

The nuisance and setback judgments of the Rockdale

County Superior Court were both decided prior to the

purchase of the Miller Bottom Road site and prior to the

passage of the restrictive kennel ordinance.?, App. 17, 19.

None of the state court litigation applies to the new

kennel ordinance. None of the state court litigation ap-

plies to the Fields’ use of the Miller Bottom Road prop-

erty. The state court has not been inhibited by the federal

court action in enforcing its judgments.3

The shelter and the Fields sought and received tem-

porary relief in the United States District Court. The

trial judge granted a preliminary injunction against the

wean of the kennel ordinance only (App. 17),

noting that there was a reasonable likelihood that the

Fields would ultimately prevail in their federal constitu-

tional challenge (on due process and equal protection

grounds).

The District Court also discussed the anti-injunction

Statute (28 U.S.C. § 2283) as it applied to the Georgia

court litigation involving the nuisance and setback issues

at the Farmer Road site. App. 15-16. The District Court

very carefully distinguished the jurisdiction of the state

court action (Farmer Road nuisance and setback issues)

with the federal court action (constitutionality of the ken-

nel ordinance applicable only to the Miller Bottom Road

property). Applying the anti-injunction statute, the Dis-

trict Court very carefully refused to enter into the areas

of state court litigation. App. 16-17.

Having limited itself to the issue of the constitu-

tionality of the kennel ordinance and the Fields’ prayer

See Life For God’s Stray Animals, Inc. v. New North Rock-

dale Co. Homeowners Assoc., 253 Ga. 551, 322 S.E.2d 239 (1984).

3See cases cited at n.1.

for injunctive relief thereon, the District Court found “a

reasonable likelihood that the Fields would ultimately

prevail” on their federal constitutional questions against

the kennel ordinance, and that a preliminary injunction

was warranted. App. 20.

The Eleventh Circuit, however, vacated and remanded

with instructions to the District Court to abstain from

deciding the constitutionality of the kennel ordinance,

and ‘‘to afford the Fields a reasonable opportunity to bring

their claims in state court.’’ App. 12.

The panel denied Petitioners’ request for a rehearing.

App. 26.

onal

REASONS FOR GRANTING THE WRIT

CIRCUIT COURT’S DECISION CONFLICTS

WITH DECISIONS OF THE SUPREME COURT.

The Supreme Court expressly disallowed absen-

tion where the only ‘‘state law’’ issue is the appli-

cation of state constitutional due process and

equal protection provisions similar to the federal

constitution.

The Eleventh Circuit’s decision requires plaintiffs

seeking redress from unconstitutional ordinances to first

exhaust all possible state constitutional issues. Under the

Eleventh Circuit’s requirements, litigants must first ex-

haust even due process and equal protection issues under a

state constitutional provision similar to the federal con-

stitution before seeking constitutional relief in the federal

forums.

Never before has the abstention doctrine been ex-

tended this far. Supreme Court decisions have admon-

ished against such an extension:

‘‘In Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct.

507 (1971), we declined to order abstention where the

federal due process was not complicated by an unre-

solved state-law question, even though the plaintiffs

might have sought relief under a similar provision of

the state constitution.’’ Harris County Commrs.

Court v. Moore, 420 U.S. 77, 88, n.14, 95 S.Ct. 870,

877, n.14 (1975).

AUTHORITIES MISAPPLIED

The case cited by the Eleventh Circuit as authority

for abstaining can be distinguished from the Fields’ situa-

tion. In Gibson v. Jackson, 578 F.2d 1045 (Sth Cir. 1978),

cert. demied, 439 U.S. 1119, 99 S.Ct. 1028 (1979), the plain-

tiff-prisoner ‘‘filed a state habeas corpus action alleging

that his federal constitutional rights had been violated in

his earlier criminal trial,’’ and that the state court was re-

quired te appoint an attorney for him, in addition to allot-

ting expenses for trial preparation. Id. p. 1046. He then

filed a lawsuit under 42 U.S.C. § 1983 in federal court to

decide the same issue of whether the state was required to

appoint an attorney and provide trial funds.

The federal court abstained because the issue may be

moot:

“The state trial court or state supreme court may

deny petitioner’s requests for assistance but nonethe-

less find his substantive claims meritorius, hence

mooting the procedural isnes [before the federal

court]. Moreover, the issue here raised may be moot

in the literal sense: the petitioner is presently repre-

sented by counsel in state court and that able lawyer,

who appeared on petitioner’s behalf before us, may

continue in the task has assumed pro-bono. The like-

lihood that the issues now presented will remain for

decision when the state proceeding is concluded is so

uncertain at this moment that an immediate decision

borders on being advisory in nature.’’ Id., p. 1050.

The Gibson case differs markedly from the Fields’

lawsuit because:

Gibson included in his earlier-filed state court case the

same issue he brought to the federal court. No state liti-

gation in the Fields’ case addresses the unconstitutionality

of the kennel ordinance.* App. i7.

No pending state court action can moot the constitu-

tional issue presented in the Fields’ case. The state court

action involved nuisance and setback issues at the Farmer

Road property. The state issues were already on appeal

before the new kennel ordinance was passed. Further, the

pendency of the federal claim has in no way hindered the

enforcement of the state court orders. Life for God’s

Stray Animals, Inc. v. New North Rockdale County Home-

owners Association (two cases), — Ga. — (Case #42473,

Feb. 26, 1986) and 253 Ga. 551, 322 S.F.2d 289 (1984). The

state eourt action involves separate property, separate

ordinances, separate legal issues.

In Gibson, the prisoner’s constitutional claim—right

to effective assistance of counsel—was directly related to

his trial on the state criminal accusations. Indeed, the ac-

cused’s constitutional issues arose out of the trial on the

state criminal charges. In the Fields’ case, the issue of

the kennel ordinance arose out of the shelter’s purchase of

4”Younger abstention is not a bar to federal court action

when state judicial proceedings have not themselves commenced

[cites] . . .” Hawaii Housing Authority v. Midkiff, —- U.S. —,

104 S.Ct. 2321, 2328 (1984).

new property which was in no way associated with the

state court action (nuisance and setback issue) attached to

the old Farmer Road site.

In Gibson, the court pointed to opportunities to avoid

through mootness the constitutional issue entirely. In the

Fields’ case, the abstention is ordered to give the Fields a

chance to litigate the same due process and equal protec-

tion issues in the state court under similar state constitu-

tional provisions. Even the Circuit Court does not see the

constitutional issues as going away—only relitigated in

state court. App. 12.

The Gibson itself case is authority for not abstaining

under these circumstances:

‘*Hence if the state statute is clear on its face, and the

only basis for abstention is that it might violate the

state constitution, there may be insufficient basis for

abstention. [Cites] . . . Here, however, there is a

‘realistic promise of avoiding constitutional issues’

[cite] for a number of reasons other than the state

court providing relief on the basis of the state consti-

tution.’’ Zd., p. 1051, n.24.

Unlike Gibson, resolution of the pending state issues

in the Fields’ case (i.e., removal of the animals from

Farmer Road to comply with state court’s nuisance and

setback orders) will not resolve or moot the kennel ordi-

nance challenge. The shelter cannot stay at Farmer Road5

*“[T]he court [Rockdale County Superior Court] entered

another order permanently enjoining the appellants’ operation

of the animals shelter as a nuisance.” Life For God’s Stray Ani-

mals, Inc. v. New North Rockdale Co. Homeowners Assoc., 253

Ga. 551 (1984) [emphasis added]. The shelter has been ordered

to cease operation at Farmer Road, not merely rearrange to com-

ply with setback requirements.

and thereby avoid the application of the kfnnel/ordimance

through the county’s grandfather provi The only

other property available for the shelter Zo-@ccupy is Miller

Bottom Road, which is subject to the provisions of the ken-

nel ordinance. App. 28, 29.

The Circuit Court also cites as authority Examining

Board v. Flores De Otero, 426 U.S. 572, 96 S.Ct. 2264

(1976), which holds that abstention is not appropriate

‘‘though the plaintiffs might have sought relief under a

similar provision of the state constitution.’’ Zd., p. 598.

The Eleventh Circuit then agrees that the Georgia consti-

tution’s due process clause ‘‘does mirror the language of

the Fourteenth Amendment,’’ then says that Georgia case

law ‘‘is a strain on substantive due process that extends

protections beyond what federal due process alone af-

fords.’’ App. 31.

The Eleventh Cireuit cited the Avant and Barrett

cases apparently to demonstrate ‘‘unsettled’’ state law or

the intertwining of the ordinance and state case law offer-

ing a specialized interpretation of the law. Avant v.

Douglas Co., 253 Ga. 225, 319 S.H.2d 442 (1984) ; Barrett

v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975). App. 8.

But these cases demonstrate that the law is clear, not un-

settled, and that the authority is not a ‘‘specialized”’ local

constitutional law provision, but the Fourteenth Amend-

ment to the United States Constitution.

Barrett, quoted as authority in Avant, clearly cited

as authority the Fourteenth Amendment to the United

States Constitution, rather than the Georgia constitution

(although either could have applied). App. 8. In addi-

tion, the cases are all consistent in their constitutional

——

holdings on the zoning ordinances and consistent with the

District Court’s findings on the Rockdale County kennel

ordinance.

What these cases demonstrate is not grounds for ab-

stention, but that the case law is clear and that the due

process and equal protection issues are, too. See, e.g.,

Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert.

granted, 455 U.S. 937, 102 S.Ct. 1426, cert dismissed, 459

U.S. 1012, 103 S.Ct. 368 (1982). In Duncan, the court de-

clined to abstain in a state election issue wherein the State

alleged the intertwining of state statutes and state consti-

tutional provisions. The court decided that the controlling

special election statute, even though never before inter-

preted in the state courts, was clear on its face, and that

other state statutes and state constitutional provisions

did not resolve the due process issue. Therefore, absten-

tion was not necessary.

Further, the Eleventh Circuit erroneously assumed

that substantive due process standards applied, when Peti-

tioners prayed that the kennel ordinance is unconstitu-

tional on procedural due process and equal protection prin-

ciples—a presumption of nuisance per se of all kennels

over 150 dogs and 50 cats (even on 220 acres of land) with-

out opportunity to present evidence (App. 9, 31); an ordi-

nance arbitrarily written to single out Petitioners’ shelter

and make sure no other kennel is subject to the ordinance

by polling the other kennels!’ App. 28-30.

The kennel was written for a single purpose and

stands by itself. The addition of other county ordinances

(e.g., setback requirements) does not diminish the nuisance

per se assumption written into the ordinance, nor erase

the attempt to single out Petitioners’ kennel.

Abstention is not appropriate ‘‘where it has seemed

unlikely that resolution of the state-law question would

significantly affect the federal claim.’’ Chicago v. Atchi-

son, Topeka & Santa Fe Railroad Co., 357 U.S. 77, 84, 78

S.Ct. 1063, 1067 (1958). The county’s attempt to integrate

the Rockdale County’s book of ordinances fails to diminish

the constituional issues.

Further, the application of the Avant and Barrett

eases, which rule unconstitutional exactly the type of con-

stitutional infringement that Petitioners’ complained of,

does not create ‘‘ambiguity’’ in the state law—it shows

resolution and consistency. Harris, Otero and Constan-

tineau® are all in accord on this issue: ‘‘we declined to or-

der abstention where the federal due process claim was not

complicated by an unresolved state-law question, even

though the plaintiff might have sought relief under a sim-

ilar provision of the state constitution.’? [Emphasis

added }

In Harris County Cmmrs. Court v. Moore, 420 US.

127, 96 S.Ct. 870 (1975), the Court did abstain to allow the

state to resolve issues governed by specialized state consti-

tutional law provisions. What was in conflict were two

Texas constitutional provisions involving the tenure and

removal of justices of the peace and constables, and a new

statute allowing for redistricting plans which would unseat

some of these judges prior to the expiration of their terms.

Also, several Texas court decisions and attorney general’s

6Examining Board v. Otero, 424 U.S. 572, 96 S.Ct. 2264

(1976); Harris Co. Commrs. Court v. Moore, 420 U.S. 77, 95 S.Ct.

870 (1975); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct.

507 (1971).

opinions seemed in conflict as to the proper construction

of these statutes.

The Harris case can be distinguished from the Fields

case because the state constitutional previsions relied upon

by the Eleventh Circuit was the state constitution’s due

process guarantee, compared to the specialized Texas elec-

tion statutes in Harris. The only state law construction

in the Fields’ case are the issues of due process and equal

protection, and it is these very issues that the Eleventh Cir-

cuit requires Petitioners to first litigate in state court.

App. 8-9.

For the federal courts to require due process and

equal protection claims to be first litigated under state

constitutional law provisions before the federal forum will

be available to them, dilutes to meaninglessness federal

question jurisdiction.

The opinions of this Court expressly halt the absten-

tion doctrine short of requiring federal due process and

equal protection issues to be first litigated in state courts:

‘‘Indeed, to hold that absention is required because

[the challenged ordinance] might conflict with the

cited broad and sweeping [state] constitutional provi-

sions, would convert abstention from an exception into

a general rule.’’

Examining Board v. Otero, 426 U.S. 595, 598, 96 S.Ct.

2264, 2279 (1976).

YOUNGER ABSTENTION ERRONEOUSLY APPLIED

Younger! abstention does not apply in this lawsuit be-

cause no pending state court lawsuit is concerned with the

interpretation of the kennel ordinance. Whether state ac-

tion is pending is ‘‘critical to the application of Younger.’’

C. Wright, The Law of Federal Courts 325 (1983). See

Hawaii Housing Authority v. Midkiff, —— US. , 104

S.Ct. 2321, 2327-8 (1984); Middlesex County Ethics Com-

mittee v. Garden State Bar Association, 457 U.S. 423, 102

S.Ct. 2515, 2521-22 (1982).

Litigation in the state courts in this case now before

the Court has concerned only the Farmer Road property

and only the issues of nuisance and setback. The Georgia

Supreme Court has ruled on these issues.” It would be be-

yond the bounds of judicial authority for the Rockdale

County trial judge to mold a decree deciding constitutional

issues without any evidence on an ordinance that has not

even been raised or tried within the lawsuit. Therefore,

there is no ‘‘concurrent state court proceedings that pre-

sent a comparable threat of inconsistent outeomes and at-

tendant friction,’’ and no basis for Younger abstention.

App. 17.

Defendant Rockdale County officials admit that the

150/50 kennel ordinance would not apply to the Farmer

Road site because of the county’s grandfather provisions.

App. 33. Therefore, the court erroneously found a ‘‘pos-

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971).

2See n.2 supra, for Georgia case cites.

Tae

Te ee

sibility . . . of ‘parallel proceedings’ in state and federal

court’? (App. 11), because the state and federal court

issues deal with separate ordinances, separate land and

separate legal principles.

The panel erroneously suggested that the Plaintiffs

had an opportunity to present their federal claims in the

state proceedings. Ap». 10. The state cases were already

filed, decided by the trial judge, and on appeal before the

kennel ordinance existed. See n.2, supra. Plaintiffs can

hardly be said to have forfeited their opportunity to raise

federal constitutional issues in federal court under these

facts.

Not only is there no pending state court action involv-

ing the kennel ordinance, but there was no opportunity to

raise the issue in state court proceedings. App. 17. On this

basis, the Younger abstention authorities cited by the

Eleventh Cireuit can be distinguished from the facts of

this lawsuit. See, e.g., Moore v. Sims, 442 U.S. 415, 425,

99 S.Ct. 2371, 2378 (1979); Juidice v. Vail, 430 U.S. 327,

337, 97 S.Ct. 1211 (1977).

Finally, in the state court litigation the homeowners

sued in a private tort for nuisance and setback enforcement

—hardly a ‘‘[p]roceeding necessary for the vindication of

important state policies or the functioning of the state ju-

dicial system.’’ Middlesex County Ethics Committee v. Gar-

den State Bar Association, 457 U.S. 423, 102 S.Ct. 2515

(Chief Justice Burger’s statement of the test for ‘‘vital-

ness’’). Unless ‘‘vital state interests’’ are at stake, federal

district courts are not proscribed from interfering with on-

going state civil proceedings when necessary to vindicate

federally protected civil rights. Miofsky v. Supertor Court

Of The State Of California, 703 F.2d 332, 337-8 (9th Cir.

1983). See also, Hawaii Housing Authority v. Midktff,

U.S. ——, 104 S.Ct. 2321, 2327-8 (1984) ; Traughber v. Beau-

chane, 760 F.2d 673 (6th Cir. 1985) (private tort suit did

not involve ‘‘vital state interests’’).

Younger abstention is inappropriate in this lawsuit

where the state action is totally unrelated to the federal ac-

tion in terms of ordinances, property and legal issues, and

no pending state action involves the kennel ordinance.

—

PULLMAN ABSTENTION ERRONEOUSLY APPLIED

In Railroad Comm’n. Of Texas v. Pullman Co., 312 U.S.

496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the Supreme Court

held that federal courts should abstain from deciding cases

when difficult or unsettled questions of state law must be

resolved before a substantial federal constitutional question

can be decided.

‘However, federal courts need not abstain on Pullman

grounds when a state statute is not ‘fairly subject to an in-

terpretation which will render unnecessary’ the federal con-

stitution question. See Harman v. Forssenius, 380 U.S.

528, 535, 85 S.Ct. 1177, 1182 (1965).’’ Hawai Housing

Authority v. Midkiff, —— U.S. ——, 104 S.Ct. 2321, 2327

(1984). |

Further, the Supreme Court has ‘‘frequently empha-

sized that abstention is not to be ordered unless the statute

is of uncertain nature, and is obviously susceptible of a

limiting construction.’’ Zwickler v. Koota, 389 U.S. 241, 251,

n.14, 88 S.Ct. 391, 397, n.14 (1967).

The kennel ordinance is not susceptible to a limiting

construction because:

(1) The ordinance has a built-in presumption of nuis-

ance* that prohibits a kennel larger than the 150/50 limits

from having the opportunity of proving that it ean function

just like any other kennel or animal farm. The animal shel-

ter is thereby denied use and enjoyment of its land that

other property owners in Rockdale County enjoy without

any opportunity of an evidentiary hearing; i.e., without due

process of law, while the county, through development per-

mits, has alternatives to protecting the public welfare. App.

33-34. See Village Of Belle Terre v. Boraas, 416 U.S. 1, 94

S.Ct. 1536 (1974); Euclid v. Ambler Realty Co., 272 US.

365, 47 S.Ct. 114 (1926).

(2) Testimony shows that Life For God’s Stray Ani-

mals, Inc. was singled out for exclusion from the county by

the ordinance—which activity was not ‘‘obviously suscepti-

ble of a limiting construction.’’ No amount of legal analysis

will change the fact that the ordinance’s creation was trig-

gered by the announcement that the shelter intended to pur-

chase 220 acres on Miller Bottom Road, or that the chair-

man of the county commission ordered a poll of all kennels

to make sure the ordinance would not affect them, but only

affect Life For God’s Stray Animals, Inc. App. 28-30, 32.

(3) When the ordinance fails in its sole stated pur-

pose to limit concentrations, no amount of construction with

other statutes will cure that defect:

‘‘Concentration, the suggested concern of the ordi-

nance, is a function of two different factors: population

3Even the Rockdale County attorney does not adhere to the

“nuisance per se” theory built into the ordinance. App. 31-32.

and area. The ordinance regulates population alone

with no reference to, or consideration of, size of the

property where animals are kept; as a consequence, the

ordinance creates a restriction that is entirely irrele-

vant on its face to the legislative goal. That irrelevance

constitutes irrationality, and the ordinance therefore

fails rationally to relate to the expressed legislative

purpose [and] ... it does not substantially relate to

general welfare.’’ App. 19-20.

The analysis of Avant and Barrett, supra, p. 12,

shows that there are no additional ‘‘difficult’’ or ‘‘unset-

tled’’ questions of state law.

The ordinance is not uncertain in its limitation of ani-

mals and application, and it has no reasonable limiting con-

struction. Therefore, /ULLMAN abstention is unneces-

sary. Hawaii Housing Authority v. Midkiff, U.S. —.,

104 S.Ct. 2321, 2327 (1984).

Oo—

DISTRICT COURT’S DISCRETION

NOT CHALLENGED

“Because of the complexity of factors which guide a

particuiar decision on Pullman abstention, we have often

held that a decision of the district court will be reversed on

appeal only upon a showing of an abuse of discretion en-

trusted to a trial court [Cites].’’ Duncan v. Poythress, 657

F.2d 691, 697 (former 5th Cir. 1981), cert. dismissed, 459

U.S. 1012, 103 S.Ct. 368 (1982).

No part of the Eleventh Cireuit’s opinion cites the Dis-

trict Court for abuse of discretion.

Included in the testimony and the trial court’s opinion

were evidence of ‘‘plaintiff’s urgent efforts to establish

their kennel in a new location (App. 20) to comply with

nuisance findings; and the county’s ability to control ken-

nels through development permits, without the necessity of

limiting animals and banning the kennels altogether. App.

31, 33-34.

In consideration of the totality of circumstances, in-

cluding delay and costs of bringing another action, the abil-

ity of the county to control Petitioners’ kennel with develop-

ment permits, the immense pressure on the Fields to move

from Farmer Road,’ the unconstitutionality of the ordi-

nance on its face, and the fact that no suit is pending which

involves the kennel ordinance or the Miller Bottom Road

property, abstention seems heavily contraindicated.

CONCLUSION

Petitioners respectfully pray this Honorable Court to

reverse the Circuit Court’s decision to abstain, because this

decision is contrary to the Supreme Court’s doctrine as

stated in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct.

907 (1971), and similar family of cases.

Where the state constitutional due process and equal

protection guarantees are similar to the federal constitu-

tional provisions, the federal forum should not be closed to

petitioners.

Jail sentences ordered for inability to move, while the nu-

merous development permits are fraught with expensive require-

ments. Life For God’s Stray Animals, Inc. v. New North Rockdale

County Homeowners Assoc., — Ga. — (Case #42473, Feb. 26,

1986).

To allow the Eleventh Circuit’s decision to remain law

is a dangerous precedent, because the decision set a prece-

dent which virtually closes down federal question jurisdic-

tion where a parallel state constitutional provision can be

found. It also abdicates federal supremacy to state’s inter-

pretation of the federal constitution.

Petitioners earnestly and respectfully pray for a rever-

sal of the abstention decision.

Respectfully submitted,

ATTORNEYS FOR PETITIONERS

Kathleen Kessler

Abraham A. Sharony

Please address all

communications to:

Kathleen Kessler, Esq.

Carr & Kessler

3384 Peachtree Road, N.E.,

Suite 250

Atlanta, Georgia 30326

(404) 233 5008

St. Bar #416575 ,

App. 1

APPENDIX, PART I

Ann P. FIELDS, et al.,

Plainttffs-A ppellees,

ROCKDALE COUNTY GEORGLA, et al.,

Defendants—A ppellants.

No. 85-8286.

United States Court of Appeals, Eleventh Circuit.

April 8, 1986.

Landowners brought action challenging county ordin-

ance regulating kennels. The United States District Court

for the Northern District of Georgia, Marvin H. Shoob, J.,

granted preliminary injunction and county appealed. The

Court of Appeals, Godbold, Chief Judge, held that absten-

tion was warranted.

Vacated and remanded.

Appeal from the United States District Court for the

Northern District of Georgia.

Before GODBOLD, Chief Judge, ANDERSON, Cir-

cuit Judge, ATKINS*, Senior District Judge.

GODBOLD, Chief Judge:

Gerald and Ann Fields, under the name ‘‘Life for

God’s Stray Animals, Inc.’’ began a not-for-profit ‘‘no-

kill’? animal shelter some time before 1980, operated on a

* Honorable C. Clyde Atkins, Senior District Judge for the South-

ern District of Florida, sitting by designation.

App. 2

lot on Presidential Circle in Lakeview Estates, a mobile

home park in Rockdale County, Georgia. The number of

animals maintained at this site was as great as 300. The

county filed suit in the Superior Court of Rockdale County

to enjoin the Fields from maintaining the shelter in the

trailer park. A consent order was entered in August 1980

allowing the Fields to move the shelter to a seven-acre site

on Farmer Road, elsewhere in the county. This decree re-

quired the Fields to seek appropriate building permits and

zoning variances and to build a fence along the Farmer

Road frontage to conceal the shelter.

The shelter was moved to the Farmer Road site. The

Fields applied to the County Board of Zoning Appeals

for a variance from a 200-foot setback ordinance but were

denied. They did not appeal the denial to the County

Board of Commissioners. In 1982 the county filed suit in

superior court to enjoin the Fields from expanding the

Farmer Road shelter. An order was entered in July 1982

prohibiting further expansion.

Early in 1983 a neighborhood association sued the

county and the Fields in superior court to abate an alleged

nuisance and to require enforcement of the setback ordi-

nance. The county cross-claimed. Following trials, orders

were entered requiring the county to enforce the setback

and enjoining the Fields from operating a nuisance. The

order addressed to the Fields directed them to propose a

compliance plan. Presumably no such plan was submitted.

The orders were stayed pending the Fields’ appeal. The

Supreme Court of Georgia affirmed the judgments. Life

for God’s Stray Animals, Inc. v. New North Rockdale

County Homeowners Ass’n, 253 Ga. 551, 322 S.E.2d 239

(1984).

App. 3

In September 1984, shortly before the Georgia Su-

preme Court issued its decision, the Fields contracted to

buy a 220-acre parcel of land, also in Rockdale County, on

Miller Bottom Road, adjoining the county dump. They

hoped to transfer the population of the Farmer Road site,

which then totalled approximately 1,000 animals, to a new

facility to be built at Miller Bottom. News of the purchase

was published, and within ten days the county passed an

ordinance! that would limit the population of animals in

Section 9-3009—MAXIMUM SIZE OF KENNELS.

(a) A kennel is hereby defined to include the keeping of

dogs and/or cats for commercial, non-commercial! or chari-

table purposes at or on a particular location or site where

said dogs or cats are restrained or confined within a fence,

building, structure or other enclosure.

(b) It shall be unlawful for any person, firm, corporation,

unincorporated association, partnership, joint venture, chari-

able organization or other legal entity to maintain or operate

a kennel within Rockdale County in which the number of

dogs exceeds 150 in number [sic], or in which the number of

cats exceeds 50 in number.

ownership or joint control of separate kennel sites or locations

by the same person, firm, corporation, unincorporated asso-

ciation, partnership, joint venture, charitable organization or

other legal entity shall cause all dogs and/or cats involved in

such jointly owned or jointly controlled separate kennel sites

or locations to be added together and counted as one kennel!

—if the kennel sites or locations are located within one nauti-

cal mile of each other.

(d) This ordinance is intended to prohibit the concentra-

tion of dogs and cats so that kennel operations shall not dis-

turb the peace, tranquility, and serenity of the various neigh-

borhoods in this County and further is intended to protect

the public health, safety and welfare relative to various dis-

eases Originating with large concentrations of animals. This

ordinance shall be liberally construed to accomplish the fore-

going intent and purposes.

(Continued on following page)

App. 4

any kennel to 150 dogs and 50 cats. Commonly owned or

managed kennels located within a one natical mile radius

of one another were treated under the ordinance as a

single kennel. The Fields consummated the purchase of

the Miller Bottom property in November 1984.

Upon remand from the Georgia Supreme Court, the

superior court in January 1985 found the county in non-

willful contempt of its order requiring the county to en-

force the setback at the Farmer Road site. The county

moved for a permanent injunction against the Fields, and

in February 1985 the superior court ordered the Fields to

remove by February 25 all structures on the Farmer Road

property not within the 200-foot setback line. The Fields

appealed these orders and moved for stays. The superior

court denied a stay. The Fields then filed a motion for

supersedeas, which was denied, and the denial was af-

firmed by the Georgia Supreme Court on February 20.

On February 25, the day of expiration of the deadline

for removal set by the superior court, the Fields filed this

(Continued from previous page)

(e) Any violation of this Ordinance shall subject the of-

fender to a fine of Five Hundred and no/100 ($500.00) Dol-

lars and/or up to thirty (30) days in the common jails of Rock-

dale County for each forty-eight (48) hour period that said

violation continues.

SECTION 2

This Ordinance is not intended to repeal or to modify the

zoning laws or regulatory ordinances of Rockdale County

relative to kennels and dogs or cats but as supplementary

thereto.

SECTION 3

This Ordinance shall be in force and take effect upon

adoption.

Adopted this 14th day of September, 1984.

App. 5

suit against the county in the U.S. District Court, pray-

ing for damages and temporary and permanent injunctive

relief. The complaint alleged fraud and conspiracy in the

county’s defense of the homeowners association litigation,

thus depriving the Fields of due process, contractual rights,

and freedom of religion. The complaint also alleged that

the kennel ordinance was arbitrary and unreasonable, that

it was the basis of the county’s refusal to grant building

permits for the Miller Bottom tract, and that it created

a suspect class ‘‘directed against’’ the Fields. The com-

plaint further alleged that the Fields applied on November

30, 1984 for development permits for Miller Botton and

that the County had refused, in part because of the kennel

ordinance, to issue the permits. Also, the Fields alleged

that the kennel ordinance was selectively enforced and that

the county’s refusal to grant building permits for the

Miller Road site was a taking without just compensation.

The homeowners association was permitted to intervene,

and the Fields amended their complaint to include allega-

tions against the association.

On February 26, 1985 the district court granted the

Fields a temporary restraining order, and on March 25

the court issued a preliminary injunction against the

county. The court found that it had no jurisdiction over

the allegations related to the litigation of the setback

ordinance at Farmer Road, citing Rooker v. Fidelity Trust

Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923)? Th

district court held that abstention doctrines did not bar

its exercise of jurisdiction over the allegations related to

the kennel ordinance. In its analysis of the propriety of

2. The Fields have not raised the correctness of this ruling.

App. 6

abstention under the doctrine of Younger v. Harris, 401

U.S. 37, 97 S.Ct. 746, 27 L.Ed.2d 669 (1971), the court noted

that the constitutionality of the kennel ordinance had not

been raised in earlier state court proceedings and that

relief could be framed that would not affect pending state

proceedings. As for abstention under the doctrine of

Railroad Comm’n v. Pullman, 312 U.S. 496, 61 S.Ct. 643,

85 L.Ed. 971 (1941), the court found that the Fields had

‘‘not articulated any real question of state law [and], in

any event ... there is no indication that the state law to

be applied is unsettled or involves a unique state consti-

tutional issue... .’’

Having crossed the abstention threshold, the district

court applied the familiar four-part test to determine the

propriety of preliminary injunctive relief, see Gresham v.

Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir.),

cert. denied, — U.S. —, 105 S.Ct. 249, 83 L.Ed.2d 187 (1984)

and concluded that the relevant factors, including a rea-

sonable likelihood that the Fields would ultimately prevail

in their federal equal protection challenge, warranted a

preliminary injunction.

The county appealed. It issued development per-

mits for the Miller Bottom property on May 3, 1985 but

reserved its legal rights, specifically those at issue here.

The intervenor association is not a party to this appeal.

DISCUSSION

Abstention is “an extraordinary and narrow excep-

tion to the duty of a [federal] Court to adjudicate a con-

troversy properly before it,” and is justified “only in the

exceptional circumstances where the order to the parties

App. 7

to repair to the state court would clearly serve an im-

portant countervailing interest.” Allegheny County v.

Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1063,

3 L.Ed.2d 1163 (1959). Abstention questions must be

resolved by close attention to the facts of each case. Bag-

gett v. Bullitt, 377 U.S. 360, 375-79, 84 S.Ct. 1316, 1324-26,

12 L.Kd.2d 377 (1964); Ross v. Houston Indep. School

Dist., 559 F.2d 937, 942 (5th Cir. 1977). In this case there

are exception circumstances and countervailing in-

terests.?

Matters of land use planning are primarily of local

concern, Louisiana Power & Light Co. v. City of Thibo-

daux, 360 U.S. 25, 28, 79 S.Ct. 1070, 1072, 3 L.Ad.2d 1058

(1959). The “routine application of zoning regulations

. is distinetly a feature of local government,” Jil! v.

City of El Paso, 487, F.2d 352, 357 (5th Cir.1971). In

Hill, the issue was whether plaintiff’s business was a public

garage or a “junk” yard and, if the latter, whether the city

ordinance proscribing junkyards was impermissibly vague

under the federal constitution. Plaintiff sought an injune-

tion of state civil and criminal proceedings and a declara-

tion that the zoning ordinance was unconstitutional. Not-

ing that the ordinance was unclear on its face and that

a state court decision could moot the federal constitutional

question, Hill held that the facts presented a “classic”

case for abstention under Pullman.

3. The case presenis factors that evoke concerns that have

shaped both the Railroad Comm’n v. Pullman, 312 U.S. 496,

61 S.Ct. 643, 85 L.Ed. 971 (1941) and Younger v. Harris, 401 U.S.

37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) abstention doctrines.

Their conjunction ‘‘militates in favor of staying our hand.”

Gibson v. Jackson, 578 F.2d 1045, 1051 (5th Cir.1978), cert.

denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979).

App. 8

In the present case there is no parallel unclarity as

to whether the Fields operate a “kennel”, but there is

considerable lack of clarity surrounding the possible appli-

cation of the kennel ordinance to the Fields’ operations.

Even if the kennel ordinance were a model of clarity,

there is a “fair possibility” that a state court would strike

it as contrary to the Georgia constitution, which would

avoid the necessity of reaching federal constitutional ques-

tions. See C. Wright, The Law of Federal Courts 304

(1983); see also, Avant v. Douglas County, 253 Ga. 225,

319 S.E.2d 442 (1984) (striking, on unspecified constitu-

tional grounds, an ordinance “limiting the number of ani-

mals per tract without taking into consideration the size

of the tract”), following Barrett v. Hamby, 235 Ga. 262,

219 S.E.2d 399 (1975) (striking zoning ordinance on Four-

teenth Amendment and Georgia constitutional due pro-

cess grounds).

Abstention is not necessarily appropriate if the rele-

vant state constitutional provision “is the mirror of the

federal one.” Wright at 305; see also, Examining Board

v. Flores de Otero, 426 U.S. 572, 598, 96 S.Ct. 2264, 2279,

49 L.Ed.2d 65 (1976). The relevant Georgia constitutional

provision* does mirror the language of the Fourteenth

4. Article |, section 1, paragraph 1 of the Georgia constitution

reads: “No person shall be deprived of life, liberty, or prop-

erty except by due process of law.”

The Georgia Supreme Court has held that the protections

of Georgia’s due process clause may exceed those of the

Fourteenth Amendment. National Mtg. Corp. v. Suttles, 194

Ga. 768, 22 S.E.2d 386, 389 (1942); cf. BT Investment Megzrs.,

Inc. v. Lewis, 559 F.2d 950, 954 & n. 15 (5th Cir.1977) (reject-

ing Pullman abstention, citing Florida Supreme Court decision

that Florida constitutional provision is ‘coextensive’ with

Fourteenth Amendment due process clause).

App. 9

Amendment due process clause, but the Georgia decisional

law represented by Avant and Barrett is a strain of sub-

stantive due process*® that extends protections beyond

what federal due process alone affords. Cf. Board of

Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33

L.Ed.2d 548 (1972) (federal due process is not an inde-

pendent source of property rights). Therefore the ken-

nel ordinance is part of a whole that resembles in im-

portant respects the “integrated scheme of related consti-

tutional provisions, statutes and regulations [which] as

a whole” called for “clarifying interpretation by the state

courts” in Harris Cty. Comm’rs Ct. v. Moore, 420 U.S. 77,

83, 85 n. 8, 88, 95 S.Ct. 870, 875, 876 n. 8, 877, 43 L.Ed.2d

32 (1975); see also Hill, 4837 F.2d at 356 (noting the city’s

argument that its ordinance was drafted to conform to

state constitutional decision law). That the kennel or-

dinance has never been construed by a state court is a

further circumstance favoring abstention. See Lake Car-

riers’ Ass’n v. MacMullan, 406 U.S. 498, 511, 92 S.Ct.

1749, 1758, 32 L.Ed.2d 257 (1972); Abell v. Frank, 625

F.2d 653, 656-58 (5th Cir.1980).

This court has abstained from deciding land use dis-

putes involving zoning, see Hill, and the exercise of emi-

nent domain, see Fountain v. MARTA, 678 F.2d 1038,

1046 (11th Cir.1982); Creel v. City of Atlanta, 399 F.2d

5. This court declined to abstain from deciding a challenge

based on state substantive due process decisional law in Hen-

ley v. Herring, 779 F.2d 1553 (11th Cir. Jan. 14, 1986). The

facts of Henley differ in important ways from those presented

here. There was no concurrent state court litigation, and the

challenge was directed against the use of a state vacation

procedure that had been clarified by extensive consideration

in the state courts.

App. 10

777, 779 (5th Cir.1968), where there were coicurrent pro-

ceedings® in the state courts. Here, there is a land use

dispute implicating concurrent state court proceedings

that present a comparable threat of inconsistent outcomes

and attendant friction. “[{T]he federal court should not

exert jurisdiction if the plaintiffs ‘had an opportunity to

present their federal claims in the state proceedings,’”

but did not do so. Moore v. Sims, 442 U.S. 415, 425, 99

S.Ct. 2371, 2378, 60 L.Ed.2d 994 (1979), quoting Juidice

v. Vail, 430 U.S. 327 337, 97 S.Ct. 1211, 1218, 51 L.Kd.2d

376 (1977) (emphasis in original). That the new kennel

ordinance has been cited in no pleading or motion in the

pending state litigation does not mean that the facts

calling for abstention are any less compelling. There is

no indication that the kennel ordinance cannot be chal-

lenged’ in superior court now.

The record does not reveal what impact on the Farmer

Road site compliance with the February 1985 superior

6. Younger abstention may not be proper where the district

court

properly finds that the state proceeding is motivated by a

desire to harass or is conducted in bad faith, or where the

challenged statute is “flagrantly and patently violative of

express constitutional prohibitions in every clause, sentence

and paragraph, and in whatever manner and against whom-

ever an e:fort might be made to apply it.”

Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200,

1212, 43 L.Ed.2d 482 (1975). The district court made no such

findings here.

7. See e.g., Ga.Code Ann. §§ 23-4-31 (Power of court to mold

and enforce decrees”), 9-11-60 (‘Relief from judgments’’)

(1982 & 1984 Supp.); City of Cordele v. Hobby, 240 Ga. 207,

240 S.E.2d 16 (1977) (upon verdict finding nuisance, court

is to “mold its decree to meet the exigencies of the case .. .”).

nan ILE 8 V MEAs a

App. 11

court order would have.’ It is possible therefore that

the state court will be called upon? to exercise its con- —

tinuing jurisdiction to apply the kennel ordinance to a

residual animal population at Farmer Road, while, in the

meantime, the federal court deals with be application of

the ordinance to Miller Bottom. This possibility presents

more than the prospect of “parallel . . . proceedings” in

state and federal court with respect to distinct parcels of

real estate. Cf. Fountain, 678 F.2d at 1046 & n. 14. The

kennel ordinance by its terms would count geographically

distinct kennels within a nautical mile of one another as

a single kennel. The record does not establish whether

the Farmer Road and the Miller Bottom sites are to be

counted as one under the ordinance. The “possibility of

inconsistent judgments” and “insuperable difficulties .. .

over the proper remedy” evident here are exceptional

circumstances favoring abstention by the federal court.

See Fountain, 678 F.2d at 1046; Creel, 399 F.2d 779.

We note the indications in the record that the county

does not intend to press the kennel ordinance against the

8. Aithough the superior court order of January 1984 enjoined

the Fields from operating the shelter at Farmer Road, the ap-

parently superceding February 1985 order suggests that the

Fields comply by “| rjeorganiz[ing] . . . the use of existing

structures [at Farmer Road] that are in compliance with the

setback requirements, so that as many animals as humanely

possible are housed in structures that do not violate the set-

back requirements.” The federal court’s order of February

26, 1985, granting temporary injunctive relief, found it un-

clear “whether the shelter can be reorganized on its present

location to comply with the setback requirements.”

9. The homeowners association has stated that it is interested

in closing down the Farmer Road kennel altogether, an in-

terest that it asserts the county does not share. See Motion

of Homeowners Association to Intervene, Record at 93.

App. 12

Fields until the constitutional issues raised here have been

adjudicated. “[T]he District Court of course possesses

ample authority in this action, or in such supplemental

proceedings as may be initiated, to protect the appellees”

while awaiting the judgment of the state courts. Harrison

v. NAACP, 360 U.S. 167, 178-79, 79 S.Ct. 1025, 1031, 3

L.Ed.2d 1152 (1959); see also, Babbitt v. Farm Workers,

442 U.S. 289, 312 n. 18, 99 S.Ct. 2301, 2316 n. 18, 60 L.id.2d

895 (1979). Aecordingly, we vacate the judgment and re-

mand to the district court with instructions to afford the

Fields a reasonable opportunity to bring, their claims

in state court, meanwhile to retain jurisdiction for further

proceedings consistent with this opinion.

VACATED and REMANDED with directions.

App. 13

APPENDIX, PART II

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Filed in Clerk’s Office

U.S.D.C. — Atlanta

March 25, 1985

Ben H. Carter, Clerk

By: G. Jackman, Deputy Clerk

CIVIL ACTION C85-1741A

ANN P. FIELDS, et al.,

Plaintiffs,

ROCKDALE COUNTY, GEORGIA, et al.,

Defendants.

ORDER

This lawsuit challenges an alleged conspiracy and

fraudulent conduct by officials of Rockdale County and a

group of homeowners against plaintiffs and the large

animal shelter they own and operate. Plaintiffs allege

that the conduct of litigation by defendants in Superior

Court of Rockdale County denied them due process and

that an ordinance enacted by the Rockdale County Com-

mission on September 14, 1984, limiting the number of dogs

and cats that may be owned by an individual or group at a

particular location. is unconstitutional.

Plaintiffs moved for a preliminary injunction to re-

strain defendants from taking any steps to move the ani-

mal shelter facilities and animals from their present loca-

tion, to determine that the new ordinance is unconstitu-

App. 14

tional, and to direct defendants to issue development

permits on plaintiffs’ new property.

In order to obtain a preliminary injunction, a movant

must show that (1) he is likely to prevail upon the merits

at a final determination, (2) that he will suffer irrepar-

able injury unless the injunction issues, (3) that the

threatened injury to movant outweighs whatever damage

the proposed injunction may cause the opposing parties,

and (4) the injunction would not be adverse to the public

interest. Gresham v. Windrush Partners, Ltd., 730 F.2d

1417, 1423 (11th Cir.), cert. dented, 105 S.Ct. 249 (1984) ;

Penthouse International, Ltd., v. Webb, 594 F.Supp. 1186,

1191 (N.D. Ga. 1984).

Before turning to the four criteria of preliminary in-

junctive relief, the Court must examine its jurisdiction

over the several counts in the complaint and its power to

afford plaintiffs some of the preliminary relief they seek.

In count one of the complaint, plaintiffs allege a vio-

lation of their rights to due process in the state courts of

Georgia. They contend that Rockdale Superior Court

improperly disregarded a 1980 consent order between

Rockdale County and plaintiffs; that the Superior Court

failed to afford them a fair and adequate opportunity to

participate in a hearing on a petition for a writ of man-

damus; that the Superior Court wrongly entered an in-

junction against plaintiffs after taking no evidence at the

hearing on the injunction request; that the Superior Court

denied plaintiffs a jury trial on a cross-claim for damages ;

and that the Superior Court and the Georgia Supreme

Court denied writs of supersedeas pending appeai of the

injunction entered against them.

1 oe

SAS DL RATS ET PO A on

App. 15

In count two, plaintiffs allege that the new ordinance

is unconstitutionallly arbitrary and unreasonable, that it

violates their right to equal protection of the laws, and

that it was unlawfully enacted.

Counts three and four do not add substantive claims;

they merely specify relief sought. Plaintiffs have moved

to amend the complaint, but the proposed amendments do

not affect determination of the motion for a preliminary

injunction.

Federal district courts have no jurisdiction to entertain

a proceeding to reverse or modify the judgment of a state

court for constitutional errors; to entertain such a pro-

ceeding would be an exercise of appellate jurisdiction.

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Rey-

nolds v. Georgia, 640 F.2d 702 (5th Cir. Unit B), cert. de-

nied, 454 U.S. 865 (1981); Collins v. Collins, 597 F.Supp.

33 (N.D. Ga. 1984).

In count one plaintiffs seek relief that is barred by

Rooker. To avoid the Rooker bar, they invoke Wood v.

Orange County, 715 F.2d 1543 (11th Cir. 1983), cert. de-

nied, 104 S.Ct. 2398 (1984).

Wood acknowledged that the Supreme Court had re-

affirmed the Rooker doctrine in District of Columbia Court

of Appeals v. Feldman, — U.S. —, 103 S.Ct. 1303 (1983) ;

but in light of a lengthy footnote in the Supreme Court’s

opinion, see Feldman, 103 S.Ct. at 1315 n.16, the court of

appeals interpreted the Rooker bar as applying only to

issues that a plaintiff had a reasonable opportunity to

litigate in state court. Wood, 715 F.2d at 1547.

Plaintiffs argue that, because they had no opportunity

to present their case in Rockdale Superior Court, their

App. 16

claim falls within the Wood exception to the Rooker bar.

This argument fails. Even if plaintiffs’ allegations about

Rockdale Superior Court are correct, plaintiffs have failed

to show that they have had, and continue to have, no rea-

sonable opportunity to litigate the issues presented in

count one! during their past and present appeals to the

Georgia Supreme Court. The proper question under Wood

is not whether plaintiffs found no fair opportunity to liti-

gate in one particular state court, but whether they had

‘no meaningful opportunity to be heard in the entire state

court system, including its appellate courts.

Furthermore, the facts presented in Wood that re-

sulted in a finding of no fair opportunity to litigate are

very different from those in this case. In Wood, plain-

tiffs. who were challenging the validity of liens entered

against them in state court, had signed affidavits waiv-

ing notice of any lien proceedings. They learned about

judgments on the lien proceedings only after time for ap-

peal had elapsed. As a result, they were utterly fore-

closed even from appearing at the proceedings. In this

ease an attorney for plaintiffs was present at every hear-

ing in Rockdale Superior Court and had the opportunity to

Because plaintiffs were not denied a fair opportunity

to litigate their due process claims in the state courts of

Georgia, the Ceurt concludes as a preliminary matter that

it is without jurisdiction over count one of the complaint.

The Court therefore will not consider fashioning any in-

. Plaintiffs’ claims that the lack of a record in Superior Court

precludes effective appellate review may be raised before

and considered by the Georgia Supreme Court.

ence me are tees. emotes

ait LTE

App. 17

junctive relief that would have as a direct or indirect

effect the review or modification of judgments by Rock-

dale Superior Court or the Georgia Supreme Court.

Count two of the complaint, which alleges unconstitu-

tionality of the new county ordinance, is properly before

the Court. If the constitutionality of the ordinance had

been made an issue in the earlier proceedings in state

courts, this Court might have to abstain under the prin-

ciples enunciated in Younger v. Harris, 401 U.S. 37 (1971).

Because, however, that issue was never raised in the state

courts, and because this Court may frame relief that would

not affect the pending state enforcement proceedings,

Younger does not apply.

The doctrine of postponement of federal constitutional

adjudication in Railroad Commisison of Texas v. Pullman

Co., 312 U.S. 496 (1941), does not apply here because, al-

though plaintiffs have vaguely alluded to violations of

state law or county ordinances, they have not articulaied

any real question of state law. In any event, even if plain-

tiffs were to articulate such a question, there is no indica-

tion that the state law to be applied is unsettled or involves

a unique state constitutional issue, both of which would

make Pullman abstention appropriate. See C. Wright The

Law of Federal Courts 304 (4th ed. 1983).

Nor is abstention of the sort involved in Burford v.

Sun Oil Co., 319 U.S. 315 (1943), required here. No par-

ticularly complicated system of regulation is present here

to cause the Court to defer to the state, and it is estab-

lished that federal courts may properly review state

land-use regulation. See Nasser v. City of Homewood,

671 F.2d 432, 439-440 (11th Cir. 1982); South Gwinnett

App. 18

Venture v. Pruitt, 491 F.2d 5 (5th Cir.) (en bane), cert.

denied, 419 U.S. 837 (1974). The Court will therefore pro-

ceed to consider, on a preliminary basis, the constitu-

tionality of the new ordinance.”

Because plaintiffs have not shown that the ordinance

creates any suspect classification or impinges upon any

fundamental right, the appropriate standard of review is

the “rational basis” test. That test requires merely that

laws be ‘‘seen to have a reasonable relation to a proper

legislative purpose, and [be] neither arbitrary nor dis-

eriminatory.’’ Nebbia v. New York, 291 U.S. 502, 537

(1934).

As the former Fifth Circuit, sitting en banc, stated

regarding a challenge to a zoning decision,

The only question which federal district court may

consider is whether the action of the zoning commis-

sion is arbitrary and capricious, having no substan-

tial relation to the general welfare. It necessarily

follows that upon a factual showing of arbitrariness

there must be some basis in fact and law to justify the

zoning action as consistent with reasonableness.

South Gwinnett Venture, 491 F.2d at 7.

Evidence at the hearing on the motion for a prelimi-

nary injunction made it quite clear that the classification

contained in the ordinance—the numerical limit on mainte-

nance of dogs and cats—was arbitrary, capricious, and ir-

2 The ordinance is reprinted as an appendix to this order.

3 Plaintiffs have stated that there is a suspect classification

and that the ordinance limits the free exercise of their

religion, but they adduced no evidence in support of those

statements.

App. 19

rational. There was no evidence of any principled attempt

to study the effects of any particular concentration or pop-

ulation of animals. Instead, to arrive at the limit imposed

by the ordinance, employees of the county commission

called all the county’s major kennels except that of plain-

tiffs and ascertained what restrictions the other kennels

would find convenient for their own purposes. The intent

to single out plaintiffs is evident both from the testimony

and from the argument of the county’s counsel; as counsel

said, ‘‘This ordinance addresses itself to the Fields.’’

There is hardly a more arbitrary or discriminatory way

that the ordinance could have been fashioned.

In light of the strong factual showing of arbitrariness,

the Court must consider whether the zoning action is con-

sistent with reasonableness and substantially relates to the

general welfare. The sole legislative purpose expressed

in the ordinance and in argument by counsel for Rockdale

County is abatement of the noise and health hazards that

result from large concentrations of animals. The Court

finds that purpose to be a legitimate county objective. On

the other hand, the ordinance does not regulate concentra-

tions at all. It merely limits the numbers of dogs and cats

that may be kept at one site, or at any jointly owned or

controlled groups of sites within one nautical mile, regard-

less of the sizes of the sites. Concentration, the suggested

concern of the ordinance, is a function of two different fac-

tors: population and area. The ordinance regulates pop-

ulation alone with no reference to, or consideration of, size

of the property where animals are kept; as a consequence,

the ordinance creates a restriction that is entirely irrele-

vant on its face to the legislative goal. That irrelevance

constitutes irrationality, and the ordinance therefore fails

App. 20

rationally to relate to the expressed legislative purpose.

Because the ordinance does not in fact limit density of ani-

mal population at any site, it does not substantially relate

to general welfare.*

Because at this juncture the ordinance apears to be

unreasonably related to the County’s goals, arbitrary, and

discriminatory, the Court preliminarily concludes that the

ordinance is unconstitutional and that plaintiffs are likely

to prevail at the final determination of the merits of count

two.

The Court finds that plaintiffs will suffer irreparable

harm if the ordinance is enforced, both because the consti-

tutional violation itself is unlikely to be redressable by

money damages and because enforcement of the ordinance

will unduly impinge upon plaintiffs’ urgent efforts to

establish their kennel in a new location once it moves from

its present site.

The Court further finds that the threat to plaintiffs if

the injunction does not issue outweighs any harm to other

parties as a result of the injunction. Finally, the Court

determines that the public interest will be served by the

prohibition of enforcement of the unconstitutional ordi-

nance.

For the reasons stated above, the Court ENJOINS de-

fendants Rockdale County, C. S. Smith, Jr., and Randy

4 — For example, under the ordinance plaintiffs could keep only

150 dogs and 50 cats on their new, 220-acre property. The

same area, if subdivided and owned separately, could, con-

sistently with the ordinance, contain over 8000 dogs and

2400 cats, even allowing for the effect of set-back require-

ments.

Fssee A bas ntact Naleited walla

App. 21

Mills, and any other officer of Rockdale County, from ap-

plying or enforcing Section 9-3009 of the Rockdale County

Code until further order of this Court.

IT IS SO ORDERED, this 25th day of March, 1985.

/s/ Marvin H. Shoob, Judge

United States District Court

Northern District of Georgia

AN ORDINANCE TO REGULATE THE SIZE AND

LOCATION OF KENNELS IN ROCKDALE COUN-

TY; TO PROVIDE PENALTIES FOR VIOLATION

THEREOF; TO SUPPLEMENT OTHER ORDI-

NANCES AND FOR OTHER PURPOSES

BE IT ORDAINED by the Board of Commissioners

of Rockdale County, Georgia, and it is hereby ordained by

authority of same as follows:

SECTION I

There is hereby adopted a new Section of the Code of

Rockdale County, to be known as Code Section 9-3009 and

it shall read as follows:

5 Although plaintiffs moved for consolidation of trial upon

the merits with the hearing on the motion for a preliminary

injunction, the Court did not consolidate the trial and the

hearing. This injunction will therefore continue until full

resolution of the claims at a later stage in the case.

Plaintiffs also requested that the Court, in the preliminary

injunction, restrain defendants from taking any step to move

the animal shelter from its present location and to direct

defendants to issue development permits on plaintiffs’ new

property. The Court has no jurisdiction to restrain defen-

dants from action concerning the shelter at its current

location. The Court may have jurisdiction to order some

relief as to the county’s consideration of plaintiffs’ devel-

opment permit applications, but that matter is not yet ripe

(Continued on following page)

App. 22

SECTION 9-3009—MAXIMUM SIZE OF

KENNELS.

(a) <A kennel is hereby defined to include the keeping

of dogs and/or cats for commercial, non-commercial or

charitable purposes at or on a particular location or site

where said dogs or cats are restrained or confined within a

fence, building, structure or other enclosure.

(b) It shal! be unlawful for any person, firm, corpora-

tion, unincorporated association, partnership, joint ven-

ture, charitable organization or other legal entity to main-

tain or operate a kennel within Rockdale County in which

the number of dogs exceeds 150 in number, or in which the

number of cats exceeds 50 in number.

(ec) In determining the population limits of a kennel,

joint ownership or joint control of separate kennel sites or

locations by the same person, firm, corporation, unincor-

porated association, partnership, joint venture, charitable

organization or other legal entity shall cause ail dogs and/

or cats involved in such jointly owned or jointly controlled

separate kennel sites or locations to be added together and

counted as one kennel—if the kennel sites or locations are

located within one nautical mile of each other.

(d) This ordinance is intended to prohibit the con-

centration of dogs and cats so that kennel operations shall

not disturb the peace, tranquility, and serenity of the vari-

ous neighborhoods in this County and further is intended

to protect the public health, safety and welfare relative to

(Continued from previous page)

and the Court will not intervene until a proper showing

is made at the appropriate time. Common sense would

require defendants to consider plaintiffs’ applications for

development permits in good faith.

[RAD OT PPR STR St

App. 23

various diseases originating with large concentrations of

animals. This ordinance shall be liberally construed to ac-

complish the foregoing intent and purposes.

(e) Any violation of this Ordinance shall subject the

offender to a fine of Five Hundred and no/100 ($500.00)

Dollars and/or up to thirty (80) days in the common jails

of Rockdale County for each forty-eight (48) hour period

that said violation continues.

SECTION II

This Ordinance is not intended to repeal or to modify

the zoning laws or regule ory ordinances of Rockdale

County relative to kennels and dogs or cats but as supple-

mentary thereto.

SECTION III

This Ordinance shall be in foree and take effect upon

adoption.

Adopted this 14th day of September, 1984.

BOARD OF COMMISSIONERS

ROCKDALE COUNTY, GEORGIA

/s/ C.8. Smith, Jr.

/s/ Charles S. Trohlinger

ATTEST:

/s/ Sarah R. Alexander

Ex-Officio Clerk

APPROVED AS TO FORM:

/s/ Sidney Nathan

County Attorney

First Reading September 14, 1984

Second Reading waived

App. 24

APPENDIX, PART III

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 85-8286

D.C. Docket No. 85-1741

(Filed June 5, 1986)

ANN P. FIELDS, et al.,

Plaintiffs-Appellees,

versus

ROCKDALE COUNTY, GEORGIA, et al.,

Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Georgia

Before GODBOLD, Chief Judge, ANDERSON, Circuit

Judge, ATKINS"*, Senior District Judge.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Georgia, and was argued by counsel;

ON CONSIDERATION WHEREOFP, it is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be and the same is

* Honorable C. Clyde Atkins, Senior District Judge for the

Southern District of Florida, sitting by designation.

App. 25

hereby VACATED; and that this cause be and the same is

hereby, REMANDED to said District Court with directions

in accordance with the opinion of this Court;

It is further ordered that each party bear their own

costs on appeal.

For the Court: Spencer D. Mercer, Clerk

Entered: April 8, 1986 |

By: Nancy A. Godfrey

Deputy Clerk

ISSUED AS MANDATE: JUNE 4, 1986

App. 26

APPENDIX, PART IV

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 85-8286

(Filed May 19, 1986)

ANN P. FIELDS, et al.,

Plaintiffs-A ppellees,

versus

ROCKDALE COUNTY, GEORGIA, et al.,

Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Georgia

ON PETITION(S) FOR REHEARING

(May 19, 1986)

BEFORE: GODBOLD, Chief Judge, ANDERSON, Circuit

Judge, ATKINS*%*, Senior District Judge.

PER CURIAM:

The petition(s) for rehearing filed by Appellees, Ann

P. Fields, et al., is DENIED.

ENTERED FOR THE COURT:

John Anderson

United States Circuit Judge

REHG-4

(Rev. 9/85)

* Honorable C. Clyde Atkins, Senior District Judge for the

Southern District of Florida, sitting by designation.

Be oes |

App. 27

EXCERPTS FROM THE HEARING TRANSCRIPT

APPENDIX, PART V

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

ANN P. FIELDS AND GERALD

FIELDS, INDIVIDUALLY, AND

LIFE FOR GOD’S STRAY ANIMALS,

INC., A CHARITABLE CORPORATION

Vs.

ROCKDALE COUNTY, GEORGIA, et al

CIVIL ACTION

NO. C85-1741A

Transcript of proceedings before the Honorable Marvin

H. Shoob, United States District Judge, in Courtroom 1905,

United States Courthouse, Atlanta, Fulton County, Georgia,

on Monday, March 15, 1985, in the above-styled action.

Appearances of Counsel:

For the Plaintiffs: Abraham Sharony

Kathleen Kessler

For the Defendants: John Nix

A. Lee Parks

Page 33, line 18 to page 34, line 1.

The Court: All Right.

For the record I will state that this court finds it does

not have subject matter jurisdiction as far as injunctive re-

lief as it pertains to the 200-foot line. The court will permit

you to make an offer of proof on the basis that I have just

stated, and you may supplement it later on in the hearing if

you have overlooked something.

App. 28

Then we will go into the constitutionality of the new

ordinance or the later ordinance.

Argument of Mr. John Nix, Attorney for Rockdale

County: Page 61, line 22 to page 62, line 9.

The Fields are in a position where their attorneys can

make a very persuasive argument that they were the ones

that were singled out. The other kennels in the county don’t

reach the size of what the Fields’ do. They were all con-

sidered.

The county went through a factual factfinding mission

to see what the sizes of other kennels were and to see what

proximity they were to other subdivisions.

But we are not dealing with a situation, Your Honor,

that is liquor stores or child smut shops or anything else

about a concentration in an area. We’re dealing with a fa-

cility that is unique, and by its very nature this ordinance

addresses itself to the Fields.

Testimony by Mr. Sidney Nations, Attorney for Rock-

dale County.

Questions by Mr. Abraham A. Sharony, Attorney for

the Fields and Life For God’s Stray Animals, Inc.

Page 82, line 20 to page 83, line 5.

Q. Approximately how many days, Mr. Nation,

passed between the time that you were requested to draft

this ordinance and the date on which it was enacted by

Rockdale County?

A. I don’t have any specific recollection. It wasn’t

long, though. Probably not more than two weeks.

Q. Okay.

}

App. 29

Would you agree that this ordinance was passed in

view of information that was publicized about the life for

God’s stray animals acquiring land on Miller bottom road

to move the animal shelter?

A. This ordinance was passed, in part, because of

that.

Testimony by Mr. Nations, cont.

Page 101, lines 4-11.

The Court: Would you agree that it’s a fair statement

to say that based on the information you had the ordin-

ance only affected the Fields at the time it was passed?

The Witness: Your Honor, I think that would prob-

ably be a fair statement except to say that it regulates—

and we did put the size limitations in here so that the

other two kennels that we talked about, the other two

kennels, so that they would have some room for future

expansion.

Testimony by Mr. Nations, cont.

Examination by Mr. Sharony.

Page 102, lines 1-19.

Q. You did call, I believe, the Tull—would you spell

that for the court reporter, the kennel?

A. Tullamore. I believe it’s T-U-L-L-A-M-O-R-E.

Q. And what was the second one?

A. I think it’s Rockdale Kennels.

Q: And what’s the animal population of these ken-

nels, Mr. Nation?

App. 30

A. If I remember right, this was last fall when we

made the calls, but the information I had was Tullamore

was about 130 and Rockdale was about a hundred.

Q. 150?

A. 180.

And Tullamore is adjacent to and near a large sub-

division. I forget the name of the subdivision, but there’s

two or three hundred houses in it. We didn’t want that

kennel to get much larger because of its proximity to those

houses.

Q. And those two kennels were the only ones that had

population anywhere near 150 dogs or 50 eats, is that

correct?

A. As far as I know, they are the two largest in the

county.

Testimony by Mr. Randy Mills, Defendant, Director

of Rockdale Planning and Development Commission.

Examination by Mr. Sharony.

Page 107, lines 10-17.

Q. Were you aware of the enactment of the new or-

dinance that we have been talking about at the time of its

enactment, were you familiar with that that ordinance

was being enacted?

A. Probably a couple of days before it was adopted.

Q. How did you become aware of that?

A. I was asked to do this phone survey also of the

surrounding kennels and try to come up with a maximum

number and minimum number of what they are comfort-

able with.

‘hes

She rer wr

App. 31

Testimony by Mr. Randy Mills, cont.

Examination by Mr. Sharony.

Page 110, ll. 9-16; p. 111, Il. 12-18; p. 112, 1. 16 to

- fea, 4 2.

Q. Do you recall you spent some time, I believe you

told me that you spent some time in the evening thinking

about it, and you came up with several reasons why that

application would be denied, and I believe you called me

the next day and gave me three, four, or five reasons why

that would be denied?

A. That’s possible.

Q. Do you recall that?

A. I think so, yes, sir.

Q. But do you recall telling me that one of the rea-

sons why the verbal application for development permits

would and should be denied was because the shelter had

been found to be a nuisance on Farmer Road and you

didn’t know it wouldn’t be a nuisance on Miller Bottom

Road, didn’t you tell me that?

A. That’s correct. I said it had been found by the

courts to be a nuisance.

Q. Now, in addition to telling me that the finding

of a nuisance would be a bar to issuing the permits, did

you tell anybody else that? Did you tell the commissioners

that? Did you tell the Fields that? Did you tell the news-

papers?

A. I think—I vaguely remember the newspaper ask-

ing the question of whether or not I had said that about

the animal shelter. I probably—I believe I said that I had.

App. 32

Q. Yes, sir.

A. My book, the development permit that you are

getting to and that you asked about, is based on nuisance,

and, so, it is a very valid concern of mine. It’s in the

definition of ‘‘kennel.’’

Comments by Mr. John Nix, Rockdale County attorney.

Page 146, lines 15-24.

The Court: Well, I don’t believe that Mr. Nix would

take the position that the fact the facility might have been

adjudged to be a nuisance on Farmer Road means that

it’s necessarily a nuisance if established on Miller Bot-

tom Road.

* * *

The Court: Wouldn’t you agree, Mr. Nix?

Mr. Nix: Your Honor, J don’t believe that because it

was a nuisance at Miller Bottom—I mean at Farmer

Road it’s necessarily going to be one. I mean that fact

does not stand for the fact it’s going to be one.

Testimony by Mr. C.S. Smith, Defendant, Chairman of

the Rockdale County Commission.

Examination by Mr. Sharony.

Page 170, ll. 2-4; p. 173, ll. 15-22; p. 179, ll. 9-19.

These other two kennels probably would not qualify

under today’s ordinances to exist. They are grandfathered

in.

* * «

Q. Did you testify, Mr. Smith, that the other two

kennels, in your opinion, would be so-called grandfathered

in under the new ordinance; is that your testimony?

ell

er Oeciattis? teat

Ib DS tab er ce LAS tine TR ine al Np cc chk ae

RIT sts

App. 33

A. That’s my understanding. Well, under the or-

dinance, they have been there for a number of years. We

have only had basie zoning and ordinance in Rockdale

County since 1967, I believe.

Q. Would it be your opinion that Life For God’s

Stray Animals would also be grandfathered in?

A. .. . If it had been grandfathered in it would

not be permitted to expand from that point on.

* * *

@. Let me show you a newspaper article which has

been marked Plaintiff’s Exhibit 21 which states: ‘‘Asked

what prompted the ordinance, Commissioner Charles

Smith said, ‘I think the ordinance speaks for itself.’ Asked

specifically if it were prompted by Life For God’s Stray

Animals’ plans to relocate,’ he replied, ‘that certainly

had a bearing on it.’ ”’

Do you recall making that statement?

A. Yes, sir, yes, sir, I did.

Discussion between the Court and Mr. Lee Parks, at-

torney for the homeowners.

Page 232, lines 14-19.

Page 233, lines 12-17.

The Court: Not how many, but I think, if you don’t

have an ordinance limiting the number of animals, I think

your planning and development director, or department, as

the case might be, could certainly make and would have

the responsibility to make a determination as to whether

this was a proper use of the facilities.

* * *

App. 34

The Court: He could make those same decisions un-

der the ordinance, if you have somebody opening up a

kennel with a hundred animals, the planning and develop-

ment director will still have to make the determination

before issuing the permit whether they have provided

for the refuse and any of the other problems that they

are likely to face.

sd ye

ve hay

271 =

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