Wilson v. Thompson

• Decision Date: 01 May 1979
• Docket Number: No. 76-4356,76-4356
• Citation: 593 F.2d 1375
• Parties: Janis M. WILSON, and Gerard G. Richardson, in behalf of themselves and others similarly situated, Plaintiffs-Appellants, v. John R. THOMPSON, Individually and in his official capacity as solicitor of the State Court of DeKalb County, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1375

593 F.2d 1375

Janis M. WILSON, and Gerard G. Richardson, in behalf of themselves and others similarly situated Plaintiffs-Appellants, v. John R. THOMPSON, Individually and in his official capacity as solicitor of the State Court of DeKalb County Defendant-Appellee.

No. 76-4356.

United States Court of Appeals Fifth Circuit.

May 1, 1979.

Rehearing and Rehearing En Banc Denied June 1, 1979.

Joseph H. King, Jr., John R. Myer, Atlanta, Ga., for plaintiffs-appellants.

Wendell K. Willard, E. C. Harvey, Jr., Decatur, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, and TUTTLE and THORNBERRY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The plaintiffs seek preliminary injunctive relief against the continued prosecution of criminal proceedings against them in the Georgia state courts. They allege that the proceedings were brought in bad faith, in that they were brought in retaliation for, and to deter them from, the exercise of their First Amendment right to petition for redress of grievances. After a hearing the District Judge ruled that the doctrine of Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, precluded a federal court from enjoining a state criminal prosecution brought in bad faith unless the plaintiffs show that they are threatened with repeated or multiple prosecutions. The plaintiffs having failed to make that showing, he denied their request for a preliminary injunction. We reverse and hold that a state prosecution undertaken in retaliation for or to deter the exercise of constitutionally protected rights may be enjoined regardless of whether the criminal defendant is threatened with repeated or multiple prosecutions. But because certain fact issues relevant to the determination of whether to grant interim relief were not resolved by the District Court, we remand.

I

This is an appeal from the denial of a preliminary injunction, a fact that has seemingly escaped the notice of both the plaintiffs and the defendant. Our summary of the facts thus reflects the testimony adduced at the hearing for a preliminary injunction. Three witnesses testified: John R. Thompson, Solicitor of the State Court for DeKalb County and defendant in this case; Judge Jack B. Smith, a judge on the State Court for DeKalb County; and Jay Lawrence, a reporter for the Atlanta Constitution.

A

On December 5, 1974, plaintiffs Gerard Richardson and Janis Wilson ¹ were involved in an altercation with two DeKalb County Deputy Sheriffs, Ronald E. Davis and J. L. Cheek. The deputies were attempting to arrest Richardson on civil contempt charges for nonpayment of alimony. Blows ensued though it does not appear that anyone was seriously injured and the identity of the aggressor is in sharp dispute. In any event, the deputies arrested Richardson and Wilson. They charged Richardson with two counts of simple battery and Wilson with one count of battery and one count of interfering with a peace officer in the performance of his duties. All of these charges are misdemeanors under Georgia law.

A preliminary hearing on the charges against Richardson and Wilson was held on February 5, 1975, and the cases were bound over to the State Court for DeKalb County. The State Court has jurisdiction over misdemeanor criminal cases, of which it handles some 1,300 per month. In normal circumstances the cases would have come to trial in the late winter or early spring of 1975. For some reason that is not apparent from the record, however, the cases were held, and no further action was taken on them until October 1, 1975. On that date Judge Smith entered separate orders placing the cases against Richardson and Wilson on the "dead docket." Each of these orders stated:

It appearing to the court that the above stated defendant was placed on voluntary probation due to Insufficient evidence and having served said probation to the satisfaction of the court, whereupon said case be and the same is hereby ordered placed on the Dead Docket.

These orders were form orders, the only typewritten portion being the italicized words "insufficient evidence."

B

Title 24-2714 of the Georgia Code provides the statutory authority for the maintenance of a dead docket. It states:

It is the duty of the clerks of the superior court

5. To keep in their offices, in vacation, and in court during term time, the following dockets and books, to-wit:

(7) A docket of criminal cases, to be known as the dead docket, to which cases shall be transferred at the discretion of the presiding judge, and which shall only be called at his pleasure. When a case is thus transferred, all witnesses who may have been subpoenaed therein shall be released from further attendance until resubpoenaed.

The case law concerning how the dead docket is supposed to work is sparse and largely uninformative, but Judge Smith and Solicitor Thompson testified concerning its operation in their court. Their testimony established that the State Court for DeKalb County used to maintain two files for inactive cases: the dead docket and the "hold file." The relationship between these two files prior to their consolidation in mid-1975 is somewhat unclear from the testimony. The hold file was apparently used in connection with DeKalb County's unique system of "voluntary probation," an invention of Judge Smith's colleague on the State Court, Judge Mitchell. The system was explained by Judge Smith by means of a hypothetical. He gave a case involving a 17-year-old high school boy charged with his first offense as a case appropriate for placement in the hold file. Such a case would be held, and if the boy served the "term" of his "voluntary probation" without incident, the case would be placed on the dead docket and never prosecuted. But if, in Judge Smith's words, the boy "went right out and commit(ted) the same thing again," the case would be removed from the hold file and placed on the trial calendar.

As typical of other cases appropriate for placement in one of the inactive files, Judge Smith and Solicitor Thompson mentioned charges arising out of a nonserious neighborhood or matrimonial dispute which the prosecuting witness later decides not to pursue. Both Judge Smith and Solicitor Thompson testified, however, that should the prosecuting witness change his mind and ask that the charges be prosecuted, the case would usually be removed from the inactive files and set for trial. Judge Smith stated, for example, that cases were generally revived at the request of the prosecuting witness "unless there is some good reason not to." His reason for this practice, he testified, is his belief that "criminal cases should be handled out in the courtroom and not handled in somebody's office unless the State and the defendant both agree that the case should be handled that way" and unless the interested parties the defendant, the State, and the prosecuting witness are content with that resolution.

C

In mid-1975, according to Judge Smith, he and Judge Mitchell decided that the maintenance of two separate inactive files was unnecessary in view of recent Georgia case law establishing that cases on the dead docket were "still pending" and could be placed on the trial calendar. ² In July or August of 1975, therefore, they directed the Solicitor "to end the hold file and to get all cases either activated or placed on the dead docket." The October 1, 1975 orders placing the cases against Richardson and Wilson on the dead docket, Judge Smith testified, were entered pursuant to this direction, and the reference in those orders to the defendants "having served said voluntary probation to the satisfaction of the Court" was in fact meaningless boilerplate.

Judge Smith also testified that the notation "insufficient evidence" did not necessarily mean that anyone had made a determination that there was insufficient evidence to prosecute. Indeed, the plaintiffs have conceded, both below and on this appeal, that based on the testimony the deputies gave at the preliminary hearing, the State had sufficient evidence to go to trial and to sustain a jury verdict of guilt.

D

On February 11, 1976, Janis Wilson filed a civil damage suit against the two deputies in the Superior Court of DeKalb County. This suit was in two counts. The first count alleged that the deputies "did, without justification, violently batter plaintiff," and sought general damages of $5,000 and punitive damages of $50,000. The second count alleged that the deputies arrested Wilson and caused her to be incarcerated, without probable cause and knowing that she had not committed an assault, and sought special damages of $1,000, general damages of $15,000, and punitive damages of $100,000.

The deputies were not served in the civil suit until July 6 and 7, 1976. On July 7, they went to see Judge Smith. Judge Smith testified that the officers told him they had been sued for "malicious abuse of process" and that they inquired about the status of the criminal action against Wilson. Judge Smith did not remember the case and took the two deputies to the office of Solicitor Thompson. Thompson pulled the file and ascertained that the case had been placed on the dead docket. According to both Smith and Thompson, Judge Smith then told Thompson to reactivate the charges against Wilson.

Judge Smith testified that his conduct was influenced by a recent case out of the Georgia Court of Appeals, Courtenay v. Randolph, 1972, 125 Ga.App. 581, 188 S.E.2d 396, and the proceedings following it. In Courtenay, the Georgia Court of Appeals held that "Placing of a case upon the dead docket constitutes neither a dismissal nor a termination of the prosecution in the accused's favor." The Court dismissed Randolph's action for malicious prosecution because the criminal charge against him remained on the dead docket and thus had not been finally determined. Following the Court of Appeals'...