Anderson v. Dean

Decision Date20 February 1973
Docket NumberCiv. A. No. 16662.
Citation354 F. Supp. 639
PartiesCharles B. ANDERSON, Jr., et al. v. Honorable William T. DEAN et al.
CourtU.S. District Court — Northern District of Georgia

Michael Padnos, Atlanta, Ga., for plaintiffs.

George P. Dillard, Herbert O. Edwards, Robert E. Mozley, Decatur, Ga., W. Dan Greer, Atlanta, Ga., for defendants.


EDENFIELD, District Judge.

Charles B. Anderson, Jr. "plaintiff" and two anonymous persons have filed this class action pursuant to 42 U.S.C. § 1983 (1970) by which they seek declaratory and injunctive relief against the enforcement by defendant J. Lamar Martin, as Sheriff of DeKalb County, Georgia, of certain orders issued by defendant the Honorable William T. Dean and defendant the Honorable H. O. Hubert, Jr., Judges in the Superior Courts of DeKalb County. The matter is before the court on plaintiffs' motion for summary judgment.

The uncontested facts before this court are that on June 7, 1971, counsel for the Pennsylvania Life Insurance Company "Penn" appeared before Judge Hubert and filed a four-page "Complaint Seeking Injunction" accompanied by a one-paragraph affidavit signed by a representative of Penn. The "complaint" alleged that for a period of approximately four years prior to June 1, 1971 plaintiff, Charles B. Anderson, Jr., had been employed by Penn as a salaried field claims representative. As part of his duties he allegedly called upon Penn policyholders who had submitted claims for disability income payments to determine the nature and extent of the claimed disability and adjust or settle the claims. Plaintiff allegedly called upon Penn policyholders in nine southeastern states and California. On May 28, 1971 Penn allegedly terminated plaintiff's employment, whereupon, according to the "complaint", plaintiff "threatened" to mail a letter to each of approximately 115 Penn policyholders upon whom plaintiff had called as well as the commissioners of insurance in the states in which they resided suggesting that their claims had not been properly handled by Penn. According to the "complaint" plaintiff advised Penn that the letters would not be mailed for ten days to allow Penn the opportunity to pay plaintiff "large sums of money" or to retract his termination notice and enter into a long-term employment contract with him. The "complaint" characterized the letters as containing "false and malicious defamation" of Penn, "tending to injure Penn's reputation and expose it to public hatred, contempt and ridicule," and alleged that they would have the effect of "interfering with the normal and legitimate business of Penn by inciting dissension and ill will between Penn and numerous policyholders and claimants, as well as the Commissioners of Insurance in the States in which Penn does business . . ." Penn also contended that unless the Superior Court of DeKalb County enjoined plaintiff from mailing the letters Penn would suffer great prejudice and irreparable injury. The one-paragraph affidavit signed by a Penn representative and attached to the "complaint" attested to the truth of the statements in the "complaint". The "complaint" contained no showing that plaintiff had been served with a copy or that he had been notified that Penn would appear in Superior Court to seek an injunction. The "complaint" sought an ex parte injunction which by its terms would extend to all agents, attorneys, and others acting in cooperation with plaintiff.

At 5:55 P.M., June 7, 1971, Judge Hubert entered a 30-day ex parte restraining order against plaintiff which stated the following:

"The within Complaint read and considered, the same is hereby ordered filed.
"The defendant is ordered to show cause before the Judge presiding in the Motions Division of this Court, at the DeKalb County Courthouse, Decatur, Georgia, at 10:00 o'clock A.M., on the 7th day of July, 1971, why the prayers of plaintiff should not be granted and why defendant should not be temporarily restrained and enjoined as prayed.
"In the meantime, and until further order of this Court, the defendant is restrained from publishing the letters described in the Complaint to the Commissioners of Insurance and/or policyholders of plaintiff and from in any manner communicating with said policyholders, claimants, and employees of plaintiff; and the terms of this restraining order shall extend to all agents, employees, and other persons acting in concert or cooperation with defendant.
"Let a copy of said Complaint and this Order be served upon the defendant.
"SO ORDERED this 7th day of June, 1971 at 5:55 P.M.

/s/ H. 0. Hubert, Jr. Judge of Superior Court Stone Mountain Judicial Circuit"

On July 2, 1971, with the consent of counsel representing both Penn and plaintiff, Judge Clarence Peeler, Jr. of the Superior Court of DeKalb County, entered an order continuing the date of the hearing on the show cause order from July 7, 1971 until further order of the court and providing that in the meanwhile the ex parte restraining order would remain in full force and effect.

Sometime in the first two weeks of August, 1971, while the ex parte restraining order was still in effect, plaintiff mailed the letters described in Penn's "complaint" to some 83 policy-holders.

On August 16, 1971 Penn moved for default judgment against plaintiff in the Superior Court of DeKalb County, and on August 25, 1971 Penn filed a motion for attachment for contempt. On August 25, 1971 Judge Dean entered an order requiring plaintiff to show cause on September 27, 1971 why he should not be adjudged in contempt of court and punished accordingly. A hearing was held on September 27 before Judge Dean, at which plaintiff appeared without counsel. At the conclusion of the hearing Judge Dean entered an order in which he found that plaintiff had violated the ex parte restraining order by mailing the 83 letters and was in contempt of court. Judge Dean sentenced plaintiff to serve 20 days for each of the 83 letters sent, for a total of 1660 days. Judge Dean's order provided that 60 days of the sentence were to be served in the common jail of DeKalb County while the remainder were to be served outside the confines of the jail on probation so long as plaintiff did not further violate the terms of the ex parte restraining order. The order also found that plaintiff was in default in the case and the restraining order was made permanent.

In his complaint in this court plaintiff seeks:

(1) A declaratory judgment that the restraining order issued by Judge Hubert and the permanent injunction issued by Judge Dean are unconstitutional and void;

(2) A declaratory judgment that the contempt conviction against plaintiff by Judge Dean is unconstitutional and void; and

(3) A permanent injunction restraining any future enforcement of the contempt conviction entered by Judge Dean.

Although this court has been most reluctant to resolve the dispute in this case by judicial decree, it finds itself duty-bound to do just that. See Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L.Ed.2d 705 (1972); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Hall v. Garson, 430 F.2d 430 (5th Cir. 1970); Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969). It must be emphasized, however, that this court does not sit as an appellate court with jurisdiction to review decisions rendered by judges of the state courts, and its sole concern in this case is with the federal constitutional issues raised.

As this court has held, the right to mail letters is a First Amendment right and any prior restraint on that right, which bears a heavy presumption of invalidity, must be carefully scrutinized. United States v. Book Bin, 306 F.Supp. 1023 (N.D.Ga.1969) (three-judge court), aff'd Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971). As the Supreme Court has often said: "Freedoms of expression must be ringed about with adequate bulwarks." Bantam Books v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584 (1963).

Libel, like obscenity, is not protected by the First Amendment. Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952); Smoot v. Fox, 353 F.2d 830 (6th Cir. 1965), cert. denied, 384 U.S. 909, 86 S.Ct. 1342, 16 L.Ed.2d 361 (1966). Thus an injunction directed against a libel is not unconstitutional, Martin v. Reynolds Metals Co., 224 F.Supp. 978 (D.Ore.1963), appeal dismissed 336 F.2d 876 (9th Cir.), aff'd on other grounds, 337 F.2d 780 (9th Cir. 1964); see Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S. Ct. 766, 86 L.Ed. 1031 (1942), whatever standing it might have under principles of equity. But just as prior restraint may not be imposed upon material thought to be obscene without adequate safeguards, Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), so, too, a prior restraint may not be imposed upon a suspected libel without adequate safeguards. See Marcus v. Search Warrants, 367 U.S. 717, 731, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Martin v. Reynolds Metals Co., supra.

In Carroll v. Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968), petitioners were members of a "white supremacist" political party which had held a rally in Princess Anne, Maryland, on August 6, 1966, at which militantly racist speeches were made to a crowd of whites and blacks. It was announced that the rally would be resumed the next night. That day, local officials of Princess Anne obtained an ex parte restraining order from a state circuit court restraining petitioners for ten days from holding rallies "which will tend to disturb and endanger the citizens of the County," and the August 7th rally was cancelled. After trial ten days later, the state circuit court issued another order extending its previous order for ten months. The Maryland Court of Appeals affirmed the ten-day order but reversed the ten-month order, holding that the...

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4 cases
  • United Farm Workers of America v. Superior Court
    • United States
    • California Supreme Court
    • July 28, 1975
    ...ruling condemns such an ex parte process when the order in question affects First Amendment rights. (See also Anderson v. Dean (N.D.Ga.1973) 354 F.Supp. 639, 642--643.) While acknowledging that the factual circumstances in the matter before us differ somewhat from those in Carroll, we find ......
  • Loza v. Panish
    • United States
    • California Court of Appeals Court of Appeals
    • February 27, 1980
    ...725, (735), 96 L.Ed. 919, (932); Smoot v. Fox (6th Cir. 1965) 353 F.2d 830, 833) and are subject to prior restraint (Anderson v. Dean (N.D.Ga.1973) 354 F.Supp. 639, 642). Whether or not these cases, particularly the latter district court decision, are viable, the rule they purport to invoke......
  • Patriarca v. FBI
    • United States
    • U.S. District Court — District of Rhode Island
    • March 18, 1986
    ...319 (1906); United States v. United Mine Workers, 330 U.S. 258, 289-95, 67 S.Ct. 677, 693-97, 91 L.Ed. 884 (1947); Anderson v. Dean, 354 F.Supp. 639, 644-45 (N.D.Ga.1973); 17 Am.Jur.2d Contempt § 43; Annot., 12 A.L.R.2d 1059, 1078, § 6 (1950). The philosophical basis of this rule is simple ......
  • Wilson v. Superior Court
    • United States
    • California Supreme Court
    • March 4, 1975
    ...266, 72 S.Ct. 725, 96 L.Ed. 919; Smoot v. Fox (6th Cir. 1965) 353 F.2d 830, 833) and are subject to prior restraint (Anderson v. Dean (N.D.Ga.1973) 354 F.Supp. 639, 642). Whether or not these cases, particularly the latter district court decision, are viable, the rule they purport to invoke......

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