Filed: Jan. 05, 1973
Latest Update: Feb. 22, 2020
Summary: 470 F.2d 870 Kent MILNER d/b/a Belvedere Driving School et al., Plaintiffs-Appellees, v. Colonel R. H. BURSON, Director of the Georgia Department Public Safety, et al., Defendants-Appellants. No. 71-2853. United States Court of Appeals, Fifth Circuit. Dec. 6, 1972. Rehearing Denied Jan. 5, 1973. Arthur K. Bolton, Atty. Gen. of Georgia, Harold N. Hill, Jr., Executive Asst. Atty. Gen., Dorothy T. Beasley, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, Ga., for Burson, Crowe and Pope. Henry L
Summary: 470 F.2d 870 Kent MILNER d/b/a Belvedere Driving School et al., Plaintiffs-Appellees, v. Colonel R. H. BURSON, Director of the Georgia Department Public Safety, et al., Defendants-Appellants. No. 71-2853. United States Court of Appeals, Fifth Circuit. Dec. 6, 1972. Rehearing Denied Jan. 5, 1973. Arthur K. Bolton, Atty. Gen. of Georgia, Harold N. Hill, Jr., Executive Asst. Atty. Gen., Dorothy T. Beasley, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, Ga., for Burson, Crowe and Pope. Henry L...
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470 F.2d 870
Kent MILNER d/b/a Belvedere Driving School et al.,
Plaintiffs-Appellees,
v.
Colonel R. H. BURSON, Director of the Georgia Department
Public Safety, et al., Defendants-Appellants.
No. 71-2853.
United States Court of Appeals,
Fifth Circuit.
Dec. 6, 1972.
Rehearing Denied Jan. 5, 1973.
Arthur K. Bolton, Atty. Gen. of Georgia, Harold N. Hill, Jr., Executive Asst. Atty. Gen., Dorothy T. Beasley, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, Ga., for Burson, Crowe and Pope.
Henry L. Bowden, John E. Dougherty, Atlanta, Ga., for Jenkins.
Hinson McAuliffe, Frank A. Bowers, James L. Webb, Atlanta, Ga., for McAuliffe.
Harry P. Hall, Jr., J. M. Crawford, Atlanta, Ga., for plaintiffs-appellees.
Before GEWIN, COLEMAN and INGRAHAM, Circuit Judges.
INGRAHAM, Circuit Judge:
1
Plaintiffs-appellees brought this action seeking a declaratory judgment that portions of Georgia's Driver Training School License Act, Ga.Code Ann. Sec. 92A-1101, were unconstitutional. They also sought temporary and permanent injunctive relief against the state officials responsible for enforcing this statute and the related criminal statute, Ga. Code Ann. Sec. 92A-9926. A three-judge district court was convened under 28 U. S.C. Secs. 2281 and 2284. That court, 320 F. Supp. 706, issued a declaratory judgment holding the statute facially constitutional and, therefore, denied the requested injunctive relief. The court decided that the unconstitutional as applied allegations of the complaint did not have to be heard by a three-judge court and remanded that portion of the case to the district court. See Phillips v. United States, 312 U.S. 246, 61 S. Ct. 480, 85 L. Ed. 800 (1941); McGuire v. Sadler, 337 F.2d 902 (5th Cir., 1964); 1A J. Moore, Federal Practice p 0.205 at 2238 (2nd ed. 1965). The district court, 326 F. Supp. 1251, subsequently held that the statute was being applied in an unconstitutional manner. The court did not declare the statute unconstitutional however, but awarded injunctive relief by enjoining enforcement of the Act against plaintiffs and enjoining state officials from prosecuting plaintiffs for violations of the Act. The defendants have appealed.
4
The district court's injunction restrained "continued prosecutions of plaintiffs for violations of the Act under any citation heretofore issued since the filing of this action and while this court retains jurisdiction of this case." The court intended to retain jurisdiction "until such time as it shall appear to the court that the Act will not be enforced in a discriminatory manner." The injunction obviously encompassed pending as well as future prosecutions, thus raising the problems considered by the Supreme Court in Younger and by this court in Becker v. Thompson, 459 F.2d 919 (5th Cir., 1972) [Tuttle, J., concurring in result]. Even though the district court considered Younger, it reasoned that: "No action taken by this court is in conflict with Younger. The jurisdiction of this court clearly attached several months prior to the institution of proceedings against these plaintiffs and the injunction today is merely in aid of the prior jurisdiction of the court." It appears that the district court was relying on the second exception to the anti-injunction statute, 28 U.S.C. Sec. 2283, which allows a federal court to enjoin state court proceedings "where necessary in aid of its jurisdiction". However, before reaching the question whether it could act within an exception to Sec. 2283, a federal district court is required by Younger to determine whether general equitable principles support its interference in state criminal prosecutions. "Younger, supra, and its companion case, Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971), established that federal intervention-by way of injunction or declaratory relief-in a state's enforcement of its criminal laws is improper unless the plaintiff can prove that the enforcement of those laws against him creates a threat to his federally protected rights as cannot be eliminated by the defense of a single state prosecution." Palaio v. McAuliffe, 466 F.2d 1230 (5th Cir., 1972). These principles are particularly relevant where, as in the case at bar, the statute had already been declared facially constitutional. Before taking any action with respect to the allegations of unconstitutional application of the Act, the district court should have required plaintiffs to make a showing that the state court prosecutions were brought in bad faith or for the purposes of harassment. Hunt v. Rodriquez, 462 F.2d 659 (5th Cir., 1972); Shaw v. Garrison, 467 F.2d 113 (5th Cir., 1972). See Stewart v. Dameron, 448 F.2d 396 (5th Cir., 1971). Such a showing would establish the necessary irreparable injury, Shaw v. Garrison, supra. In order to justify federal intervention the court would next have to conclude that the irreparable injury thus established is "both great and immediate." Younger v. Harris, 401 U.S. at 46, 91 S. Ct. 746. After this analytical process has been completed, the district court should consider whether its action is warranted under 28 U.S.C. Sec. 2283. See Atlanta Coast Line R. R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S. Ct. 1739, 26 L. Ed. 2d 234 (1970).
5
The judgment of the district court is vacated and the case is remanded for proceedings consistent herewith.
