430 F.2d 430 (5th Cir. 1970), 29690, Hall v. Garson

Docket Nº:29690
Citation:430 F.2d 430
Party Name:Claudine HALL et al., Plaintiffs-Appellants, v. Sylvia GARSON et al., Defendants-Appellees.
Case Date:July 22, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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430 F.2d 430 (5th Cir. 1970)

Claudine HALL et al., Plaintiffs-Appellants,


Sylvia GARSON et al., Defendants-Appellees.

No. 29690

United States Court of Appeals, Fifth Circuit.

July 22, 1970

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[Copyrighted Material Omitted]

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Stuart M. Nelkin, Houston, Tex., for Claudine Hall, and another.

James W. Miller, Houston, Tex., for Cosmopolitan Apartments.

Harry M. Reasoner, Houston, Tex., for Robert Sud.

Sam Williamson, Houston, Tex., for Garson & Kaplan.

Before JOHN R. BROWN, Chief Judge, and MORGAN and INGRAHAM, Circuit Judges.

JOHN R. BROWN, Chief Judge:

When Claudine Hall came home on the night of September 24, 1969, and found that her General Electric portable television set had been taken out of her apartment by Sylvia Garson, it is not likely that she realized that basic issues of Federal Court jurisdiction and the jurisdiction of that unfortunate step child of Federal procedure, the three-Judge Court, would be raised by her dispute with her landlady. But such has been the result.

Sylvia seized Claudine's television under the authority of Tex.Rev.Civ.Stat.Ann. Art. 5238a, 1 which gives the

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landlord a lien on the personal goods of the tenants that are in the rented premises and in addition gives the landlord authority to enforce that lien by the peremptory seizure of the property. The lien is given to the extent of past-due rents and the property may be seized without any prior judicial procedure to determine the validity of the claim for the past-due debts or the accuracy of the amount claimed.

The constitutionality of this statutory authority is here challenged by Claudine as individual plaintiff for herself and as a representative of the class of tenants affected by Art. 5238a. See F.R.Civ.P. 23(a). Injunctive relief is sought against defendants, Sylvia Garson, Max M. Kaplan, the owner of the apartments Sylvia managed, and all other persons similarly situated. This constitutional challenge was brought in the Federal District Court for the Southern District of Texas. It is urged that the Court had jurisdiction under 28 U.S.C.A. § 1343 2 and it is urged that a claim for which relief can be granted is stated under 42 U.S.C.A. § 1983. 3 Because of the request for injunctive relief in the constitutional attack upon a state statute, a three-Judge Court was requested pursuant to 28 U.S.C.A. § 2281. 4

After a hearing, the District Court refused to notify the Chief Judge of the Circuit pursuant to 28 U.S.C.A. § 2284 5

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of the request for a three-Judge Court. The District Court also dismissed the underlying claim on the grounds that there was no jurisdiction under 28 U.S.C.A. § 1343 nor a claim for which relief could be granted under 42 U.S.C.A. § 1983 since there were adequate state judicial remedies available.

Plaintiffs sought relief in this Court. 6 We reverse the District Court. That Court had jurisdiction under 28 U.S.C.A. § 1343 and a claim for which relief can be granted has been stated under 42 U.S.C.A. § 1983. But, although there is a substantial question presented, the District Court was correct in refusing to notify the Chief Judge of the request for a three-Judge Court.

I. Jurisdiction of the District Court 42 U.S.C.A. 1983. But, although there is a substantial question presented, the District Court was correct in refusing to notify the Chief Judge of the request for a three-Judge Court.

I. Jurisdiction of the District Court

A. Exhaustion of State Remedies

Whether this is a one-Judge case or a three-Judge case cannot be determined until it is decided whether it is a Federal case. The District Court's articulated justification for its holding that it lacks jurisdiction was the failure of the tenants either to exhaust their state remedies, whatever they may be, or to show that these remedies were inadequate.

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Support for this jurisdictional requirement was found in the recent opinion in Schwartz v. Galveston Independent School District, S.D.Tex.1970, 309 F.Supp. 1034, 7 by another Judge of the District Court for the Southern District of Texas.

In Schwartz the Court held that in order for there to be jurisdiction in a Federal District Court under the 28 U.S.C.A. § 1343 or a cause of action stated under 42 U.S.C.A. § 1983 it was necessary for the plaintiff to show that remedies available under state administrative and judicial procedures either had been exhausted or were inadequate to provide relief. The conclusion reached in Schwartz that Federal Courts lack jurisdiction to adjudicate claims of deprivation of Federal rights is based upon a rereading of the legislative history of 42 U.S.C.A. § 1983.

But the reading of that legislative history by a Federal District Court or even by a Court of Appeals has largely been estopped by one hundred years of litigation under § 1983. During this one hundred years of experience the cry that it was necessary for state judicial remedies to be exhausted or shown to be inadequate before Federal Court action to restrain state conduct could be taken has been heard repeatedly. It has, however, consistently fallen on unresponsive ears and been muffled by the Supreme Court. See C. Wright, Federal Courts, § 49 (2d ed. 1970).

The cry was made by local government when local regulations of business were under constitutional attack. But the response to these cries was limited. In Bacon v. Rutland R.R. Co., 1914, 232 U.S. 134, 34 S.Ct. 283, 58 L.Ed. 538, an equity bill to restrain the state public service commission from requiring the railroad to locate a passenger station in a particular place, Mr. Justice Holmes said that the state remedy available to the railroad to make its challenge was judicial and 'this being so * * * the railroad company was free to assert its rights in the district court of the United States.' 232 U.S. at 138, 34 S.Ct. at 284, 58 L.Ed. at 539. Mr. Chief Justice Taft took the same position in Pacific Telephone and Telegraph Co. v. Kuykendall, 1924, 265 U.S. 196, 44 S.Ct. 553, 68 L.Ed. 975. The only positive response came in the guise of the abstention doctrine (see IB, infra) where controlling questions of state law, which were unresolved by state courts, were presented. See e.g., Gilchrist v. Interborough Rapid Transit Co., 1924, 279 U.S. 159, 49 S.Ct. 282, 73 L.Ed. 652.

The same cry was also heard when the actions of local government were under attack because they allegedly deprived persons of personal civil rights. And it was again muffled. In Lane v. Wilson, 1939, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281, a suit challenging an Oklahoma restriction on voting, Mr. Justice Frankfurter said that to 'vindicate his present grievance the plaintiff did not have to pursue whatever remedy may have been open to him in the state courts. * * * Barring only exceptional circumstances * * * or explicit statutory, requirements * * * resort to a federal court may be had without first exhausting the judicial remedies of the state.' 307 U.S. at 274, 59 S.Ct. at 875, 83 L.Ed. at 1287.

The same cry was again heard after Mr. Justice Douglas set out the purposes 8 of 42 U.S.C.A. § 1983 in Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.

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It was argued that Monroe held that the only purpose of § 1983 was to provide relief where state remedies were inadequate or only available in theory, not in practice. But the Supreme Court soon quieted this argument.

In McNeese v. Board of Ed., 1963, 373 U.S. 668, 671, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622, 624-625 the Court pointed out that in Monroe, supra, 365 U.S. at 183, 81 S.Ct. at 482, 5 L.Ed.2d at 503 it had said that the 'federal remedy is supplementary to the state remedy, and the latter need not be sought and refused before the federal one is invoked.' This has routinely been repeated by that Court, Damico v. California, 1967, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647; Houghton v. Shafer, 1968, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319; and we do not believe that the pronouncements 9 made by the Court in those cases were meant to be limited to any particular type of § 1983 10 case. See Note, Exhaustion of State Remedies under the Civil Rights Act, 68 Colum.L.Rev. 1201 (1968). We believe they were to have general application. 11 In a like manner, this Court routinely rejects the cry that it is necessary to exhaust state remedies. See Orr v. Thorpe, 5 Cir., 1970, 427 F.2d 1129. And we here again reject it.

B. The Abstention Doctrine

In its order dismissing this case the District Court's citation of Schwartz could also be construed as involving the mutation of the abstention doctrine that was there given birth. The Schwartz version of the abstention doctrine is that since the state has a vital interest in education and has a procedure through which a federal claim may be presented any federal interests are 'amply protected by the opportunity for direct review in the United States Supreme Court of all State judicial decisions.' Schwartz, supra, 309 F.Supp. at 1049.

But this mutation is inconsistent with the prior evolution of the law. It,

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like the exhaustion requirement, cannot survive. First, the abstention doctrine in federal constitutional claims is generally grounded on uncertainty 12 created by the 'strands of local law woven into the case' McNeese, supra, 373 U.S. at 673, 83 S.Ct. at 1436, 10 L.Ed.2d at 626. See Reetz v. Bozanich, 1970, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68. When, however, the cloth of state law is, as here, 13 off the loom and there can be no doubt as to what the state law provides, there is no place for abstention. 14 Moreover, this doctrine was not changed by Reetz v. Bozanich, 1970, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68. There the Court directed the District Court to abstain from passing on an Alaska fishing license statute. There was great uncertainty whether the statute violated the Alaska Constitution and because of this uncertainty...

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