Concerned Citizens of Vicksburg v. Sills, No. 75-4450

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before COLEMAN, SIMPSON and TJOFLAT; SIMPSON
• Citation: 567 F.2d 646
• Docket Number: No. 75-4450
• Decision Date: 13 February 1978
• Parties: CONCERNED CITIZENS OF VICKSBURG and Rev. Eddie L. McBride, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Murry SILLS, Mayor of Vicksburg, et al., Defendants-Appellees.

Page 646

567 F.2d 646 CONCERNED CITIZENS OF VICKSBURG and Rev. Eddie L. McBride,
Individually and on behalf of all others similarly
situated, Plaintiffs-Appellants,
v.
Murry SILLS, Mayor of Vicksburg, et al., Defendants-Appellees. No. 75-4450. United States Court of Appeals,
Fifth Circuit. Feb. 13, 1978.

Page 647

Frank R. Parker, Lawyers' Committee for Civil Rights Under Law, Jackson, Miss., William E. Caldwell, Lawyers' Committee for Civil Rights Under Law, Washington, D. C., for plaintiffs-appellants.

Ed Noble, Jr., Asst. Atty. Gen., State of Miss., A. F. Summer, Atty. Gen., Jackson, Miss., John E. Ellis, Dist. Atty., George N. Chaney, Warren County Pros. Atty., Vicksburg, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before COLEMAN, SIMPSON and TJOFLAT, Circuit Judges.

SIMPSON, Circuit Judge:

Concerned Citizens of Vicksburg, an unincorporated association, filed suit against various officials of the city of Vicksburg attacking the validity of Mississippi's anti-boycott statutes and seeking declaratory and injunctive relief. A three-

Page 648

judge district court ¹ dismissed the suit on the ground that prosecutions under the challenged statutes pending against six of the 49 plaintiffs required federal abstention. Because the six prosecutions have been terminated during the pendency of this appeal, we vacate the judgment of the district court and remand for a determination of whether the requirements for federal jurisdiction are present.

In March 1972, plaintiffs below, a group of black citizens of Vicksburg, Mississippi, organized to make various demands upon certain merchants and city officials relating to alleged discriminatory employment practices, public and private. Later that month, plaintiffs began picketing some business establishments in Vicksburg and urging, by word of mouth and through leaflets, that the citizens of Vicksburg boycott those establishments until plaintiffs' demands were met. On May 2, 13, 14, and 21, 1972, all 49 plaintiffs were arrested, some more than once, on the basis of warrants alleging their complicity in a conspiracy unlawfully to bring about a boycott of merchants and businesses. Some of the arrests took place while the arrestees were engaged in picketing to protest discrimination allegedly practiced by Vicksburg merchants. Bond was set at $5,000 for each person arrested except for juveniles, who were released without charges. Plaintiffs, through state habeas corpus proceedings, succeeded in having their bonds reduced to $1,000 for those arrestees over sixty years of age and to $1,500 for all others. Property bonds were posted and plaintiffs were released.

As a result of these arrests, plaintiffs filed two cases in federal district court, only one of which is the subject of this appeal. On May 25, 1972, plaintiffs filed a petition seeking to compel transfer of the state charges against them to the district court pursuant to 28 U.S.C. § 1443. The district court denied relief and was affirmed by this Court and by the Supreme Court. Johnson v. Mississippi, 488 F.2d 284, reh. en banc denied, 491 F.2d 94 (5th Cir. 1974), aff'd, 421 U.S. 213, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975). Hours earlier, on May 24, 1972, plaintiffs had filed their complaint in the instant case, seeking a declaratory judgment that the Mississippi anti-boycott statutes on which their arrests were based were unconstitutional, and injunctive relief against further enforcement of those statutes.

In March 1973, the Warren County grand jury was presented with the cases of the 49 plaintiffs. The grand jury returned indictments against two of the plaintiffs for violation of Miss.Code Ann. § 97-23-83 (1972), and against four others for violation of Miss.Code Ann. § 97-23-85 (1972), but refused to indict the remaining plaintiffs.

On September 25, 1975, the three-judge district court in this case granted defendants' motion to dismiss on the following ground:

No indictments were returned against 43 of the arrested plaintiffs in the instant case, but criminal charges are presently pending against 6 plaintiffs. . . . The Court is of the opinion that 28 U.S.C. § 2283, as interpreted in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny prohibits this Court from retaining jurisdiction in light of the fact that criminal prosecutions are pending under the attacked statute against 6 of the plaintiffs. ²

Page 649

Final judgment was entered by a single district court judge on October 29, 1975, and plaintiffs timely filed their notice of appeal. In their brief, plaintiffs, as appellants, note that "(t)his appeal is perfected on behalf of only the forty-three not-indicted plaintiffs against whom no state proceedings of any kind are pending". Brief for Appellants at 8.

At oral argument, the Assistant Attorney General for the State of Mississippi, representing the defendants, informed this Court that in November 1975, within one month of the district court's dismissal, the Vicksburg district attorney terminated the prosecutions of the six indicted plaintiffs by filing a nolle prosequi. The Attorney General's Office did not learn of this action until the day prior to oral argument, October 18, 1977. ³

The briefs in this case addressed the question of whether Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), precluded the district court from retaining jurisdiction over the 43 unindicted plaintiffs while state prosecutions based on the challenged statutes were pending against six other plaintiffs. Our consideration of this issue is foreclosed, however, by the fact that the prosecutions of the six plaintiffs were terminated during the pendency of this appeal. Because the judicial power conferred by Article III of the Constitution depends upon the existence of "Cases" or "Controversies", federal courts lack authority "to decide moot questions or abstract propositions" or issues "that cannot affect the rights of litigants in the case before them". North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). See also Shupack v. Groh, 498 F.2d 675 (5th Cir. 1974); Armendariz v. Hershey, 413 F.2d 1006 (5th Cir. 1969). Furthermore, "an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is...