461 F.2d 1171 (5th Cir. 1972), 29013, Hawkins v. Town of Shaw, Mississippi

Docket Nº:29013.
Citation:461 F.2d 1171
Party Name:Andrew HAWKINS et al., Plaintiffs-Appellants, v. TOWN OF SHAW, MISSISSIPPI, et al., Defendants-Appellees.
Case Date:March 27, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1171

461 F.2d 1171 (5th Cir. 1972)

Andrew HAWKINS et al., Plaintiffs-Appellants,

v.

TOWN OF SHAW, MISSISSIPPI, et al., Defendants-Appellees.

No. 29013.

United States Court of Appeals, Fifth Circuit.

March 27, 1972

Page 1172

Melvyn R. Leventhal, Jackson, Miss., Jack Greenberg, Jonathan Shapiro, New York City, for plaintiffs-appellants.

Charles M. Haar, Cambridge, Mass., and Daniel Wm. Fessler, Davis, Cal., for the Joint Center for Urban Studies of the Massachusetts Institute of Technology and Harvard University, amicus curiae, in support of appellants.

Ancil L. Cox, Jr., Cleveland, Miss., William Allain, Asst. Atty. Gen., Jackson, Miss., Thomas H. Watkins, Jackson, Miss., for defendants-appellees.

Before JOHN R. BROWN, Chief Judge, and TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM, and RONEY, Circuit Judges.

PER CURIAM:

The court, having been convened En Banc and having heard additional oral argument and considered additional briefs, reaffirms the judgment entered by the original panel of this court, 5 Cir. 1971, 437 F.2d 1286. The court, however, makes the following statements dealing with some of the issues raised either originally or by Petition for Rehearing.

I

In judging human conduct, intent, motive and purpose are elusive subjective concepts, and their existence usually can be inferred only from proven facts. As stated in the original opinion, the record before us does not contain direct evidence which establishes bad faith, ill will or any evil motive on the part of the town of Shaw and its public officials. However, the record proof does clearly establish conduct which cannot be judicially approved.

In order to prevail in a case of this type it is not necessary to prove intent, motive or purpose to discriminate on the part of city officials. We feel that the law on this point is clear, for "'equal protection of the laws' means more than merely the absence of governmental action designed to discriminate; .

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. . 'we now firmly recognize that the arbitrary quality of thoughtlessness can be as disastrous and unfair to private rights and to public interest as the perversity of a willful scheme'." (Emphasis supplied.) Norwalk CORE v. Norwalk Redevelopment Agency, 2 Cir. 1968, 395 F.2d 920, 931. See also Kennedy Park Homes Association, Inc. v. City of Lackawanna, New York (2 Cir. 1970) 436 F.2d 108, 114, cert. den. 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971) and United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F.2d 53 at 65.

Moreover, in our judgment the facts before us squarely and certainly support the reasonable and logical inference that there was here neglect involving clear overtones of racial discrimination in the administration of governmental affairs of the town of Shaw resulting in the same evils which characterize an intentional and purposeful disregard of the principle of equal protection of the laws. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Loving v. Virginia, 388 U.S. 1, 10, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1966); Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497; Kennedy Park Homes Association, Inc. v. City of Lackawanna, supra; Rodriguez v. Brown, 5 Cir. 1970, 429 F.2d 269, 273; Norwalk CORE v. Norwalk Redevelopment Agency, supra 395 F.2d at page 931.

Federal Courts are reluctant to enter the field of local government operations. The conduct of municipal affairs is "an extremely awkward vehicle to manage." It is apparent from our original opinion, and we repeat here, that we do not imply or suggest that every disparity of services between citizens of a town or city creates a right of access to the federal courts for redress. We deal only with the town of Shaw, Mississippi, and the facts as developed in this record.

II

We have carefully reviewed the record here, and it appears that various persons in the class of plaintiffs sought relief as to some of the services in question from the municipal government prior to filing suit. Although the district court found to the contrary, we do not think that finding can stand as to all of the services in view of the evidence on this point in the record. There can, therefore, be no question about the claim here being ripe for presentation to the United States Courts under the provisions of 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Whatever requirements may exist as to the need of a plaintiff to demonstrate that there is such "finality" to the deprivation of which he complains as to make the cause of action "ripe" for the bringing of a federal law suit (cf. discussion in Stevenson v. Board of Education of Wheeler County, Georgia, 5 Cir. 1970, 426 F.2d 1154, cert. den. 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265; and Hall v. Garson, 5 Cir. 1970, 430 F.2d 430, 436), no such problem exists here.

Thus, this posture of the case obviates the necessity of our attempting to articulate a generally applicable principle of "finality" or "ripeness" beyond what has already been said in the cited cases. For us to do so in view of the many different kinds of "civil rights" actions that are comprehended under Section 1983, would not only be extremely difficult, but, as to other fact situations and types of actions, any statement by us would amount merely to dictum and would be purely advisory. We reiterate what we have previously said-that before any case can be considered by a federal court under Section 1983 the forbidden deprivation must be complete and final. Otherwise, the courts would merely be advancing advisory opinions, which they may not do under Article 3, Section 2 of the Constitution.

Applying the foregoing standards, it is our opinion that the case under consideration is the type of case in which federal jurisdiction should be exercised. Having reached that conclusion all that

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remains is to choose an appropriate remedy and to frame the appropriate relief. 1

III

Here the original panel directed defendants to submit a plan to eliminate the disparities to the district court. This was a sound approach under the facts of this case. This is not to say, of course, that in another case involving deprivation of rights under Section 1983 requirement of the submission of a plan by the defendant governmental authority would be the most appropriate remedy. In some situations, presenting a simple issue, the case may be finally disposed of on appeal. In others the case may well be remanded to the district court, after a determination of the rights of the parties, for the purpose of permitting the trial court to exercise its full equitable discretion in the first instance. Here, however, the matter had received extended attention in the district court. All possible facts were available to the court. Also, according to statements at the time of oral argument, a bi-racial committee has been appointed by the municipal governing authorities to advise with the mayor and counsel regarding city services. A black citizen had been elected to the city council. These facts, taken together, would seem to indicate the feasibility of a remedy whereunder the municipal authorities will formulate a plan to eliminate the disparities. Once formulated, the plan will, of course, be subject to approval by the district court.

The judgment is reversed and remanded for further proceedings not inconsistent herewith.

WISDOM, Circuit Judge (specially concurring):

I fully agree with Judge Tuttle's opinion for the panel and favor adopting it as the opinion of the en banc Court. Although I agree with the result reached by the Court en banc, I disagree with some of the statements contained in the OPINION en banc.

A. First, the opinion states, "In order to prevail in a case of this type it is not necessary to prove intent, motive or purpose to discriminate on the part of city officials." This I accept as an accurate statement of the law. The opinion goes on to state, however, "Moreover, in our judgment the facts before us squarely and certainly support the reasonable and logical inference that there was here neglect involving clear overtones of racial discrimination in the administration of governmental affairs of the town of Shaw resulting in the same evils which characterize an intentional and purposeful disregard of the principle of equal protection of the laws." This statement is ambiguous. It should not be read to imply that our decision in this case was based even in part on proof of motive, purpose, or intent. To imply that proof of motive, purpose, or intent is necessary to establish a basis for relief in a case such as this is to misstate the clear and unambiguous law on the subject. See Palmer v. Thompson, 1971, 403 U.S. 217, 225, 91 S.Ct. 1940, 1945, 29 L.Ed.2d 438, 445; Griffin v. County School Board of Prince Edward County, 1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256; Comillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; NAACP v. Button, 1963, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed. 2d 405;

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Brown v. Bd. of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Brown v. Bd. of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. 1

B. Second, the opinion states, "It is apparent from our original opinion, and we repeat here, that we do not imply or suggest that every disparity of services between citizens of a town or city creates a right of access to the federal courts for redress. We deal only with the town of Shaw, Mississippi, and the facts as developed in this record." I agree that not every failure to provide equal municipal services will result in a cause of action under section 1983 in federal court. I do not agree that what was said in the panel opinion and what we say here is confined to the facts of this case. The town of Shaw is not the proverbial "red-haired, one-eyed man with a limp". By our decision in this case, we...

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