331 F.Supp. 122 (M.D.Ala. 1971), Civ. A. 3339, Berryhill v. Gibson

Docket Nº:Civ. A. 3339
Citation:331 F.Supp. 122
Party Name:Berryhill v. Gibson
Case Date:September 03, 1971
Court:United States District Courts, 11th Circuit, Middle District of Alabama

Page 122

331 F.Supp. 122 (M.D.Ala. 1971)

L. M. BERRYHILL et al., Plaintiffs,


Thomas S. GIBSON et al., Defendants.

Civ. A. No. 3339-N.

United States District Court, M.D. Alabama, Northern Division.

Sept. 3, 1971

Page 123

Harry Cole, Hill, Hill, Stovall, Carter & Franco, Montgomery, Ala., for plaintiffs.

Richard A. Billups, Jr., Jackson, Miss., and by Alton Turner, Luverne, Ala., for defendants.

Before RIVES, Circuit Judge, and JOHNSON and VARNER, District Judges.


VARNER, District Judge:

Plaintiffs in the above cause are licensed optometrists under the state law, Code of Alabama, Title 46, § 190 et seq. In October, 1965, each of the Plaintiffs was employed by Lee Optical Company or was working on the premises of said corporation in fitting glasses and doing related optometry work in association with the sale by Lee Optical Company, of glasses to the public. In October, 1965, Plaintiffs were charged by the President of the Alabama Optometric Association with having violated several sections of the Alabama optometry law in a proceeding to be decided by the State Board of Optometry, with the result of suspending or not suspending the licenses of each of the Plaintiffs. The matter of license suspension has been pending since 1965 but has not been actively prosecuted until Plaintiffs were notified in the spring of 1971 by the Board that the matters pending against them would be heard the latter part of May, 1971.

Plaintiffs filed this proceeding requesting a three-judge court to determine the constitutionality of the statute pursuant to which the Alabama Optometric Association seeks suspension of the licenses of the Plaintiffs. Plaintiffs seek an injunction against prosecution of said state proceedings. To this end, a three-judge court has been empaneled. By Cross-Claim, Defendants seek to have this Court revoke Plaintiffs' licenses to practice optometry. By agreement, the administrative prosecution has been suspended pending this proceeding.

Page 124

Plaintiffs insist that suspension of their licenses would deprive them of the right to seek remuneration from practicing their profession and, therefore, deprive them of their property without due process of law. More specifically, they say the following:

1. That since the individual members of the State Board of Optometry are substantially the same individuals who signed affidavits in 1965 stating, or supporting proceedings charging, that the Defendants (Plaintiffs here) had committed the violations charged in the proceedings, conviction of the offenses charged and suspension of licenses are but predetermined formalities with no element of a fair trial;

2. That the statutes under which Plaintiffs are being prosecuted, as they pertain to the Plaintiffs' rights to appeal from any adverse decision, are unconstitutional, particularly, in providing no method of superseding the suspension of licenses in question pending court review; and

3. That the State Board of Optometry is illegally constituted in that only about one-half of the practicing optometrists of the state may participate in the government of their profession.

The initial question in this case is whether this is such a situation as will require or permit federal intervention to restrain actions of a state court or administrative body. The Supreme Court in several recent cases has indicated federal reluctance to intervene, even to secure federal constitutional rights, in state judicial or administrative proceedings unless particular harassment or irreparable injury will result from the state proceeding. The Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), held that there is no irreparable injury if the threat to the plaintiff's federally-protected rights can be eliminated by defense of a single criminal prosecution, that "our federalism" ordinarily precludes an injunction against pending state criminal proceedings, and that the federal courts ordinarily should not intervene by injunction even to protect federally-protected rights without any showing of bad faith, harassment, or any other unusual circumstances that would call for equitable relief, 91 S.Ct. at 755. While dicta in Younger may indicate that the rule of that case does not apply in civil cases, no distinction is made between civil and criminal cases by Congress in the anti-injunction act, 28 U.S.C. § 2283. However, it has been held that this statute is not applicable to state administrative proceedings, Engelman v. Cahn, 2 Cir., 425 F.2d 954. The case of Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), indicated that "the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and *** where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well." 91 S.Ct. at 768. In the case of Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971), a district court's injunctive relief to a person charged under the Texas obscenity statute, on the basis of the district court's conclusion that the...

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