Gresham Park Community Organization v. Howell

• Citation: 652 F.2d 1227
• Decision Date: 10 August 1981
• Docket Number: No. 80-7175,80-7175
• Parties: GRESHAM PARK COMMUNITY ORGANIZATION, Simon E. Parker, Macy B. Lee and Calvin E. Sims, Plaintiffs-Appellants, v. Gary HOWELL d/b/a Southeast Package Number Two, et al., Defendants-Appellees. . Unit B
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1227

652 F.2d 1227

GRESHAM PARK COMMUNITY ORGANIZATION, Simon E. Parker, Macy

B. Lee and Calvin E. Sims, Plaintiffs-Appellants, v. Gary HOWELL d/b/a Southeast Package Number Two, et al.,

Defendants-Appellees.

No. 80-7175.

United States Court of Appeals, Fifth Circuit.

Unit B

Aug. 10, 1981.

Bowen, Derrickson, Goldberg & West, Dwight Bowen, Ralph Goldberg, Atlanta, Ga., for plaintiffs-appellants.

Howard & Gilleland, Robin K. Warren, Pierre Howard, Jr., Thomas F. McNally, Jr., Decatur, Ga., for Gary Howell, Etc.

Gail C. Flake, Decatur, Ga., for Clyde W. Henley and Pat Jarvis.

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

Before KRAVITCH and THOMAS A. CLARK, Circuit Judges, and LYNNE ^*, District Judge.

KRAVITCH, Circuit Judge:

Gresham Park Community Organization (GPCO) and three officers of the organization sued under 42 U.S.C. § 1983 to enjoin enforcement of a state court injunction prohibiting them from picketing defendant-appellee Gary Howell's liquor store. The district court held that the abstention doctrine compelled dismissal of the suit. GPCO and the three officers appeal. We affirm.

Facts

GPCO was formed ostensibly for the purpose of improving the Gresham Park area. The catalyst for forming the organization was the opening of a new liquor store, Southeast Package Store Number Two, by Gary Howell. GPCO, opposed to another liquor store in the community, picketed the business. On August 31, 1979, Gary Howell sued GPCO, its three officers, ¹ and Gresham Bottle Shop, ² a competing liquor store, in the Superior Court of Dekalb County, Georgia, seeking damages and an injunction against further unlawful interference with his business. Howell's complaint alleged that appellants were picketing the "entrance to his store, interfering with ingress and egress thereto by potential customers, ... shouting ... that the Plaintiff's store is under a (boycott) ..., and ... approaching, following, harassing, and otherwise attempting to prohibit potential customers from entering the (store)," the purpose being to force the closing of his business.

On August 31, 1979, Superior Court Judge Curtis Tillman issued a temporary restraining order enjoining the state defendants from picketing or otherwise illegally interfering with Howell's business. On September 12, 1979, the court held a hearing on GPCO's motion to dissolve the temporary restraining order (TRO). GPCO maintained that the TRO infringed upon its right to freedom of speech under the United States Constitution. The court denied the motion to dissolve the TRO pending an additional hearing scheduled for September 25. On September 24, Judge Tillman certified for immediate appellate review GPCO's appeal from his interlocutory order denying dissolution of the TRO. ³ GPCO filed in the Georgia Court of Appeals an application for leave to appeal and petition for review wherein it again argued that the TRO violated its constitutional rights. On October 11, the application was denied. We presume that the Court of Appeals did so because it had no jurisdiction to review a case involving the constitutionality of a Georgia statute or involving extraordinary relief; such appellate jurisdiction is vested exclusively in the Georgia Supreme Court. Ga.Code § 2-3104. GPCO failed, however, to pursue its appeal in the Georgia Supreme Court.

On October 19 the state court, pursuant to a motion by GPCO, set November 15 as the date for a hearing on preliminary and permanent injunctive relief and "continued the TRO." ⁴

On November 14 GPCO instituted an action in federal court under 42 U.S.C. § 1983 against Howell and Judge Tillman, maintaining that the TRO violated its first amendment rights. GPCO asked that the court:

(A) Declare the Notice and Order (TRO) ... issued by Judge Tillman to be violative of plaintiffs' First and Fourteenth Amendment rights;

(B) Enjoin Judge Tillman and defendant Howell from enforcing the Notice and Order.

With respect to Howell's damage claim, GPCO asked the court to:

(D)(1) Declare plaintiffs' activities to be protected by the First Amendment;

(2) Enjoin (Howell) from proceeding with the damage action in the state Court proceeding; or,

(3) In the alternative, retain jurisdiction, and enjoin the enforcement of any judgment granted to defendant Howell against the plaintiffs herein in the state Court action because of plaintiffs' protected First Amendment activities.

GPCO also asked for $20,000 in damages from Howell. GPCO further moved for a TRO enjoining enforcement of the state TRO and enjoining Howell from requesting and Judge Tillman from issuing a permanent injunction in the state proceeding.

On November 15, in the state court proceedings, GPCO moved for leave of court to file a late answer ⁵ which inter alia "(served) notice on the Court that they desire to reserve all First Amendment ... Claims for litigation in federal Court." The state court refused to allow the late filing. It held a hearing in which GPCO as well as Howell participated. On November 20, Superior Court Judge Henley, then presiding, issued an order permanently enjoining GPCO, under Ga.Code § 54-805, ⁶ from using force, intimidation, or threats thereof in picketing Howell's store for the purpose of interfering with his business and further enjoining picketing within 250 feet of Howell's property line. The court found that these limitations did not violate GPCO's first amendment rights. The court also made a finding of fact that, in addition to unlawfully interfering with Howell's business, GPCO's picketing "constituted a traffic hazard as well as a danger to the picketers themselves." GPCO has not appealed this permanent injunction to the Georgia Supreme Court, whose decision, if adverse, GPCO could have sought review in the United States Supreme Court. As of July 1980, Howell's state suit for damages was still pending.

Subsequently, with leave of court, GPCO amended its § 1983 complaint. GPCO replaced paragraph (B), quoted supra, with a prayer to "(e)njoin Judge Clyde W. Henley, (Sheriff of Dekalb County) Jarvis, and ... Howell from enforcing the permanent injunction issued in the state court action." GPCO also asked the federal court to declare Ga.Code §§ 54-801 to 805 violative of the first amendment both facially and as applied to GPCO.

On November 27, the federal district court denied GPCO's motion for a TRO on the grounds that GPCO had not satisfied the criteria for a grant of extraordinary relief. ⁷ The court, however, deemed abstention inappropriate on the grounds that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) had not been extended to "an exclusively private dispute to which the state has never been a party in either the state or federal proceedings."

On December 21, after a hearing, the court announced it would enter an order dismissing the case on the ground of abstention. The order was issued January 17, 1980.

GPCO has appealed this ruling, raising the following issues:

1) Whether abstention was appropriate.

2) If abstention was inappropriate, whether the state adjudication is res judicata as to the constitutional issues.

3) If res judicata is also inapplicable, whether the injunction enjoining GPCO's picketing deprived GPCO of its constitutional rights.

4) Whether either side is entitled to attorney fees if it prevails on this appeal.

I.

We affirm on the ground of Younger abstention. Under this doctrine, a federal court declines to exercise jurisdiction that it possesses primarily because of concerns of federalism. Henry v. First National Bank of Clarksdale, 595 F.2d 291, 300 (5th Cir. 1979). Abstention is not the equivalent of res judicata, which is an exercise of jurisdiction, nor the equivalent of lack of jurisdiction. In the case law, however, the line of demarcation between the three concepts has not been clearly drawn. Thus, to establish our power to abstain, we examine two jurisdictional issues ⁸ which, although not briefed by either party, we reach sua sponte. Marshall v. Gibson's Products, Inc. of Plano, 584 F.2d 668 (5th Cir. 1978) (appellate court has a duty sua sponte to determine whether the district court lacked jurisdiction). ⁹ Also, to clarify the grounds upon which we decide this case, we discuss res judicata, in addition to abstention.

The first jurisdictional issue turns on whether we consider GPCO's suit an appeal from a state court judgment or a separate suit based on the constitutional deprivations effectuated by the judgment. Under Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), district courts have no jurisdiction to review state court decisions. The district court, however, would have jurisdiction if we accept the second characterization. ¹⁰

In Rooker, the federal plaintiffs sued in district court praying that a state supreme court judgment be declared null and void on constitutional grounds. ¹¹ The United States Supreme Court held without a full discussion that lower federal courts have no jurisdiction to review state court judgments. To decide whether the district court had jurisdiction to entertain GPCO's suit, we must determine the current scope and validity of Rooker.

Numerous courts have interpreted Rooker as establishing a broad rule that federal district courts have no jurisdiction to entertain a claim made by the losing party in state court that would in effect nullify or modify the state court decision. Brown v. Chastain, 416 F.2d 1012 (5th Cir. 1969) ¹² so interprets Rooker, holding that "independent equitable proceedings to prevent the enforcement of a judgment are considered a direct attack upon it," and, under Rooker, district courts have no jurisdiction to perform such a review of state decisions. ¹³

Brown's test, based upon its interpretation of Rooker whether the relief prayed for would in effect modify or nullify the state court judgment is consistent with a line of the Fifth Circuit cases. See, e. g., ...