463 F.2d 1338 (5th Cir. 1972), 71-1856, Becker v. Thompson

Docket Nº:71-1856.
Citation:463 F.2d 1338
Party Name:Sandra Lee BECKER, etc., et al., Plaintiffs, Richard Guy Steffel, Plaintiff-Appellant, v. John R. THOMPSON, etc., et al., Defendants-Appellees.
Case Date:July 20, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1338

463 F.2d 1338 (5th Cir. 1972)

Sandra Lee BECKER, etc., et al., Plaintiffs, Richard Guy Steffel, Plaintiff-Appellant,

v.

John R. THOMPSON, etc., et al., Defendants-Appellees.

No. 71-1856.

United States Court of Appeals, Fifth Circuit.

July 20, 1972

Appeal from the United States District Court for the Northern District of Georgia, Albert J. Henderson, Jr., Judge, 334 F.Supp. 1386.

Howard Moore, Jr., Peter E. Rindskopf (deceased), Elizabeth Roediger Rindskopf, William R. Gignilliat, III, William H. Traylor, John R. Myer, Atlanta, Ga., for plaintiff-appellant.

Robert E. Mozley, George P. Dillard, Decatur, Ga., Dock H. Davis, Atlanta, Ga., for defendants-appellees.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion May 3, 1972, 5 Cir., 1972, 459 F.2d 919).

Before TUTTLE, GEWIN and DYER, Circuit Judges.

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

GEWIN and DYER, Circuit Judges, specially concurring:

The full court has considered the views of Judge Tuttle, expressed in concurrence, and has further considered the suggestion that the panel has been overruled by Lake Carriers' Association v. MacMullan, 1972, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257.

Lake Carriers' is an abstention case, and as Justice Brennan points out, "[T]he question of abstention, of course is entirely separate from the question of granting declaratory or injunctive relief." 406 U.S. at 509, 92 S.Ct. at 1756. Significantly, he also points out that in Lake Carriers', unlike Becker, there is an "absence of an immediate threat of prosecution." Id. at 511, 92 S.Ct. at 1757. Justice Brennan's gratuitous statement that, in the absence of pending prosecutions, declaratory relief may be appropriate, is as he indicates, taken from his separate opinion in Perez v. Ledesma, 1971, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed. 2d 701, and is pure dicta in Lake Carriers'. To suggest that the Supreme Court in collateral dicta in Lake Carriers' has decided that the prerequisites to federal intervention defined in Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, do not apply to declaratory judgments against threatened state criminal prosecutions is inconceivable when the issue was so carefully preserved in Younger and Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 for a time when the point was squarely raised.

The lack of a nod to the Younger doctrine by the Supreme Court in its recent decisions in Police Department of the City of Chicago v. Mosley, 1972, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 and Lloyd Corp., Ltd. v. Tanner, 1972, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, is of no moment. The grant of certiorari in each case was specifically limited to constitutional issues other than those raised by Younger and its progeny. See 1972, 404 U.S. 1037, 92 S.Ct. 703, 30 L.Ed.2d 728; 1972, 404 U.S. 821, 92 S.Ct. 42, 30 L.Ed.2d 48.

We underscore our agreement with the dissent that the district courts of this Circuit are entitled to consistent decision making on our part. Since Younger and Samuels were decided, but prior to the decision in this case, this Court twice held that declaratory relief was inappropriate

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in cases involving threatened state criminal prosecutions in the absence of proof of Younger prerequisites to intervention. Cooley v. Endictor, 5 Cir. 1972, 458 F.2d 513; Thevis v. Moore, 5 Cir. 1971, 440 F.2d 1350. Such is the holding of the case sub judice. No panel has held to the contrary. 1

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

JOHN R. BROWN, Chief Judge, with whom WISDOM and GOLDBERG, Circuit Judges, join dissenting from the denial of rehearing en banc:

Because Senior Circuit Judge Tuttle has not participated in the Court's consideration of the petition for rehearing en banc, he does not have an opportunity to respond now to the apparent rejection of the views expressed in his concurring opinion. As one who shares his misgivings, I feel obligated to state concisely my reasons for believing that the present case is enbancworthy.

In effect the Court has held that a Federal declaratory judgment action challenging the constitutionality of a State criminal law is subject to the restrictions imposed by Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed. 2d 669 and companion cases, regardless of whether prosecutions under that law have been initiated. That position has heretofore been rejected by the First, 1A Third 2 and Sixth 3 Circuits and by at least two three-judge District Courts. 4 Its underlying philosophy appears to be at odds with one of our own earlier...

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