Baxter v. Strickland

• Decision Date: 04 September 1974
• Docket Number: Civ. A. No. 74-966.
• Parties: William E. BAXTER, Jr., et al. v. Deen STRICKLAND et al.
• Court: U.S. District Court — Northern District of Georgia

381 F. Supp. 487

William E. BAXTER, Jr., et al. v. Deen STRICKLAND et al.

Civ. A. No. 74-966.

United States District Court, N. D. Georgia, Atlanta Division.

September 4, 1974.

Herbert Shafer, Atlanta, Ga., for plaintiffs.

David J. Bailey, Asst. Atty. Gen., Atlanta, Ga., for defendants.

Before MORGAN, Circuit Judge, and MOYE and FREEMAN, District Judges.

ORDER

RICHARD C. FREEMAN, District Judge:

On May 17, 1974, plaintiffs filed this civil rights action for injunctive and declaratory relief and for damages against eleven members of the Georgia Bureau of Investigation (hereinafter "G.B.I."). Federal jurisdiction was invoked pursuant to 28 U.S.C. §§ 1331, 1343(3) and (4) and 2201, and 42 U.S.C. § 1983. The complaint attacks, as violative of the due process clause of the Fourteenth Amendment to the United States Constitution, Ga.Code Ann. § 26-2709, which provides:

Seizure of gambling funds or other things of value

Any funds or other things of value used for purposes of gambling and seized in any gambling place or found in or on any gambling device shall vest in the county and shall be paid into the county treasury as county funds. (Acts 1968, pp. 1249, 1320; 1969, pp. 857, 866.)

Since the complaint requests temporary and permanent injunctive relief against enforcement of the statute or the conducting of proceedings pursuant to this statute by state officials, plaintiffs specifically requested that a three-judge court be convened as provided in 28 U. S.C. §§ 2281 and 2284. By order of Chief Judge Brown, dated June 24, 1974, a three-judge court was designated; it convened on August 5, 1974, for a hearing on the request for injunctive relief against enforcement of the State statute.

Defendants have filed an answer and motions to dismiss or to stay this action. On June 25, 1974, eighteen days after defendants filed an answer to the original complaint, plaintiffs filed an amended complaint. However, plaintiffs did not seek leave to amend as required by Rule 15(a), Fed.R.Civ.P.; and, defendants have not answered the allegations added by the amended complaint.¹

The following facts are not in dispute: On April 13, 1974, agents of the G.B.I. conducted a gambling raid on certain premises located in Richmond County, Georgia. During the course of the searches of the premises, and of the persons thereon, at least $46,066.79 in cash and checks was seized. The checks seized, amounting to $6,800.79, were returned prior to the commencement of this action. On April 15, 1974, two days after the gambling raid, a jeopardy tax assessment for January, February, and March, 1974, totaling $39,289.90, was issued against a number of the plaintiffs herein. Plaintiff Baxter has been convicted of gambling-related charges filed in consequence of the April 13 raid. Plaintiff John Owen Tyler has been acquitted of gambling-related charges filed in consequence of the raid and has filed a "Demand for return of Money" on the Sheriff of Richmond County, the State Commissioner of Revenue, the Director of the G.B.I. and three G.B.I. agents.

In addition to some of the facts not in dispute, the complaint alleges that defendant G.B.I. agents conducted unlawful searches of plaintiffs' persons, property and residences, resulting in the seizure of over $50,000. It further alleges that, although the money was not used for the purposes of gambling, the G.B.I. agents acted under color of Ga.Code Ann. § 26-2709. The seizure of plaintiffs' money and the continued retention thereof by state officials has allegedly caused plaintiffs to sustain irreparable harm.²

Defendants have filed motions to dismiss based on the following grounds: lack of a substantial federal question, failure to state a claim against defendants upon which relief can be granted, lack of a present case or controversy, lack of irreparable harm and adequacy of a remedy at law. They further contend that certain of the plaintiffs lack standing and that as to all plaintiffs other than John Owen Tyler, there is no jurisdiction under 28 U.S.C. § 1331 for failure to satisfy the requisite jurisdictional amount. Defendants also urge the court to abstain from considering the merits of the constitutional question. In light of our action today, the three-judge court need not consider all the grounds urged by defendants for dismissal.

It is well established that the federal courts established pursuant to Article III of the Constitution do not render advisory opinions; they are limited to deciding issues in actual cases and controversies. United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). Further,

the controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.

Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). Justiciability is the term of art employed to give expression to the limitation placed upon the federal courts by the case and controversy doctrine. Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

As applied to complaints challenging the constitutionality of a statute, the various doctrines of standing, ripeness, and mootness "are but several manifestations — each having its own `varied application' — of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action." Poe v. Ullman, 367 U.S. 497, 503-504, 81 S.Ct. 1752, 1756, 6 L.Ed.2d 989 (1961).

While it is clear that ripeness is a constitutional, jurisdictional prerequisite to both injunctive and declaratory relief, United States v. Mitchell, supra, the general rule, as stated in the Aetna decision, applied to determine whether or not ripeness exists is difficult to apply and has, on occasion, produced contrary results. International Tape Mfr. Ass'n v. Gerstein, 494 F.2d 25, 27-28 (5th Cir. 1974). The Gerstein court emphasized that

while the case law reveals no precise ripeness formula, it indicates that one challenging a statute must demonstrate that he is immediately injured or jeopardized by its operation.

Id. at 28 (emphasis added).

In the case before this court, the complaint generally alleges, upon information and belief, that the seizure of funds on April 13, 1974, was "conducted under the authority of Georgia Code Annotated, Section 26-2709 . . ." and that "during all of the times mentioned in the complaint, the Defendants have acted under color of Georgia Code Annotated, Section 26-2709. . . ." Defendants have denied, however, that they were acting under authority of § 26-2709 and rely, as authority for the searches and seizures, on a search warrant, issued prior to the April 13 raid by the Honorable Oliver Mixon, an Associate Judge of the Civil Court, Richmond County, Georgia. At the hearing conducted by this court plaintiffs produced no evidence whatsoever in support of the allegation that the seizures were conducted under the authority of or that defendants sought to justify them by § 26-2709.³ Further plaintiffs have not alleged or shown that the funds seized were ever in the hands of county officials pursuant to the challenged statute. Where there is no showing that the state action which forms the basis of the complaint was predicated on or justified by the challenged statute, there is no actual "case or controversy" concerning the constitutionality of the statute and, thus, the constitutionality thereof is not justiciable.

Further, in the case before the court, a jeopardy tax assessment has been issued as to the funds seized and the funds are presently in the control of the State Revenue Commissioner. While plaintiffs seek in the amended complaint⁴ to name the State Revenue Commissioner as a party defendant and requests that the court declare the jeopardy assessment null and void, there is a strong federal policy against interference with the enforcement of state tax laws. Great Lakes Dredge and Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943). This policy is reflected in the Johnson Act, 28 U.S.C. § 1341, which provides that the district courts shall not enjoin, suspend, or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. The policy against interference is sufficiently strong that even though in most cases the propriety of declaratory relief may properly be considered independently of a request for injunctive relief, Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), the Steffel Court indicated that

the only occasions where this Court has disregarded these "different considerations" and found that a preclusion of injunctive relief inevitably led to a denial of declaratory relief have been cases in which principles of federalism militated altogether against federal intervention into a class of

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