543 F.2d 48 (8th Cir. 1976), 76-1657, Munson v. Gilliam

Docket Nº:76-1657.
Citation:543 F.2d 48
Party Name:Lee A. MUNSON, Prosecuting Attorney of the Sixth Judicial District of the State of Arkansas, Appellant-Petitioner, v. Ruth GILLIAM et al., Appellees, Ira Forrester and Hazel Forrester, Intervenors-Appellees, Ron Moore and Marilyn (Higgins) Moore, Intervenors-Appellees, The Honorable Terry L. Shell, United States District Judge, Eastern District of
Case Date:October 20, 1976
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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543 F.2d 48 (8th Cir. 1976)

Lee A. MUNSON, Prosecuting Attorney of the Sixth Judicial

District of the State of Arkansas, Appellant-Petitioner,


Ruth GILLIAM et al., Appellees,

Ira Forrester and Hazel Forrester, Intervenors-Appellees,

Ron Moore and Marilyn (Higgins) Moore, Intervenors-Appellees,

The Honorable Terry L. Shell, United States District Judge,

Eastern District of Arkansas, Respondent.

No. 76-1657.

United States Court of Appeals, Eighth Circuit

October 20, 1976

Submitted Sept. 16, 1976.

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John Wesley Hall, Jr., Little Rock, Ark., for appellant.

Andrew Weltchek, Little Rock, Ark., for appellees; Kenneth L. Schorr, Little Rock, Ark., on brief.

Darrell D. Dover and Thomas B. Staley of House, Holmes & Jewell, Little Rock, Ark., filed amicus curiae brief for Little Rock and North Little Rock Board of Realtors, Inc.

Before GIBSON, Chief Judge, MARKEY, [*] Judge, and STEPHENSON, Circuit Judge.

MARKEY, Chief Judge, Court of Customs and Patent Appeals.

This is an expedited interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1) 1 from an

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order of the United States District Court for the Eastern District of Arkansas granting plaintiff-appellees' (Gilliam's) motion for a preliminary injunction. We reverse and remand.


On June 24, 1976, Gilliam filed a complaint, on her behalf, that of four named co-plaintiffs and that of all others similarly situated, 2 under 42 U.S.C. § 1983 3 in the United States District Court for the Eastern District of Arkansas, alleging violations of civil rights, the exercise of which is guaranteed in the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Gilliam specifically alleged a threat of prosecution pursuant to Ark.Stat.Ann. § 50-523 (Repl.1971) 4 (the statute) for having failed to pay rent when due, and that the defendant-appellant (Munson), prosecuting attorney for Arkansas' Sixth Judicial District, was acting unconstitutionally in his manner of enforcing the statute. 5 Gilliam contends that Munson commences criminal proceedings against tenants arbitrarily, without the intent of obtaining convictions under the statute, but to assist landlords in evicting tenants who fail to pay rent. Since 1974, when a Circuit Judge of Pulaski County declared portions of the civil eviction statutes of Arkansas 6 to be unconstitutional, tenants in that county have been provided with a right to prior notice and hearing before Writs of Possession can be issued to evict them following a civil action. 7 Gilliam asserts that the criminal statute, as it is being applied, "circumvents" the civil statutes, puts a "chilling effect" on the tenant's right to assert defenses, and forces the tenant to risk criminal conviction and fine as a result of what he may have considered to be a justified refusal to pay rent. 8 On June 25, 1976, a hearing was held on Gilliam's request for a temporary restraining order (TRO) to bar further prosecutions under the criminal statute.

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At the conclusion of testimony, in which defenses to enforcement of the statute were raised by Gilliam, Munson stated to the court that he would not prosecute the individual plaintiffs and that he would issue an office directive to that effect. The hearing was adjourned after the court had requested the parties to attempt negotiation of a settlement, and to file additional briefs on five outstanding issues. 9 A stipulation was also filed, containing statistics on the number and frequency of Pulaski County prosecutions under the statute for the period six months prior to March, 1975. 10

On July 15, 1976, Ira and Hazel Forrester moved to intervene in the case as co-plaintiffs. 11 They stood charged with a violation of the statute and their trial had been set for July 29, 1976. On July 28, Ron and Marilyn Moore also moved to intervene, following Mr. Moore's July 26th arrest for a similar statutory violation. The intervenors' municipal court cases were passed until September at the prosecutor's request and a joint hearing on the intervention motions was held by the District Court on July 30. Munson objected to both interventions, asserting procedural and jurisdictional grounds, and on the grounds of undue delay and unlawful federal interference with state criminal process.

After the court heard testimony of the intervenors, their landlords, Munson and other employees of the prosecutor's office, the reporter was dismissed and argument on the motions proceeded. Having earlier ruled that it had jurisdiction, the court granted both motions to intervene. During further argument an exchange took place between the court and Munson, the exact nature of which is in dispute. 12 Apparently convinced that criminal prosecutions, in the Arkansas Municipal Court, of plaintiffs and intervenors would proceed before the merits of the present claim could be heard, the court conditionally certified the class and orally enjoined Munson from maintaining any prosecution against any member of the tenant class who asserted any defense. On August 2, 1976, Munson filed an application requesting the court to modify the oral injunction and to stay its effect pending appeal. On August 5 the stay was denied and the court filed a written Order of Injunction, somewhat modified in scope from the oral order. 13 Munson had filed his notice of appeal to this court on August 2, 1976. On August 11, 1976, we granted

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Munson's motion to have the matter expedited.


Our review is limited to the propriety of the District Court's Order of Injunction. Munson has presented several other issues which we find unnecessary to address in view of our decision on the Order of Injunction, 14 and we intimate no opinion respecting such other, unrelated issues. The grant of a preliminary injunction requires a showing of a strong likelihood of eventual success on the part of the grantee and a showing of irreparable harm likely in the absence of the grant. Where, as here, the injunction is designed to control a state law enforcement officer in the performance of his state-mandated duties, the burden on one seeking such injunction is heavy.

The prerequisites to federal equitable intervention in state criminal prosecutions have been very narrowly defined and applied by this and other federal courts. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) the Supreme Court explained the compelling reasons for restraint in this area and concluded:

(W)e hold that a federal court must not, save in exceptional and extremely limited circumstances, intervene by way of either injunction or declaration in an existing state criminal prosecution. Such circumstances exist only when there is a threat of irreparable injury "both great and immediate." 401 U.S. at 56, 91 S.Ct. at 757.

The Court went on to specify some threats that might qualify as "great and immediate."

A threat of this nature might be shown * * * if there has been bad faith and harassment official lawlessness in a statute's enforcement * * * . Id.

On the record before us we see no such threat of "great and immediate" irreparable injury. As discussed below, the finding of irreparable harm appears to have been based solely on the disputed exchange with Munson (see footnote 12) which led the court to believe that all appellees would be prosecuted before it could hear the merits of the present controversy. That belief, and the meager evidence offered to show bad faith, upon which the District Court justified its injunction, hardly constitute a sufficient basis for the serious encroachment on state criminal processes involved herein. Bonner v. Circuit Court of City of St. Louis, Mo., 526 F.2d 1331 (8th Cir. 1975) (en banc), cert. denied, 424 U.S. 946, 96 S.Ct. 1418, 47 L.Ed.2d 353, reh. denied, 425 U.S. 926, 96 S.Ct. 1525, 47 L.Ed.2d 773 (1976). Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). The District Court found ultimate proof of bad faith to be likely in relying primarily on the following factors: (1) the stipulation of facts filed July 25, 1976, 15 (2) Munson's testimony that the only investigation performed prior to trial is the taking of the landlord's affidavit, and (3) several landlords' testimony that the statute was primarily used to evict tenants without the necessity of getting involved in a civil suit. We cannot find, in the record before us, the requisite evidence of bad faith to constitute a showing of likelihood of success, or the requisite evidence of irreparable harm.

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Evidence of Bad Faith

The evidentiary value of the statistics presented in the stipulation, reflecting the number of ten-day notices served versus the number of tenants prosecuted and actually tried (see footnote 10), is extremely questionable at best. Without an understanding of the context and underlying circumstances from which the figures are drawn, the District Court should have attributed little, if any, weight to the mere numbers in the stipulation. 16

A thorough review of Munson's testimony, as well as the testimony of two para-legals employed by the prosecutor's office, reveals that a landlord is questioned extensively, under oath, on the circumstances surrounding an alleged violation of the statute before a criminal information is prepared. 17 If it is determined that a legitimate dispute exists between the landlord and tenant, appearing to be civil in nature, no information is issued. Though it is possible that failure to question a tenant prior to issuing an information could result in an acquittal when the tenant presents a valid civil defense, such omission can hardly be characterized as "bad faith" or "harassment" or "official lawlessness" on the part of the prosecutor. Clearly an investigation of the tenant's position could be beneficial. Exercise of the prosecutor's investigative responsibilities must, however,...

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