Duke v. State of Texas

• Decision Date: 19 June 1973
• Docket Number: No. 71-2845.,71-2845.
• Citation: 477 F.2d 244
• Parties: Elizabeth Ann DUKE et al., Plaintiffs-Appellees, v. The STATE OF TEXAS et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

477 F.2d 244 (1973)

Elizabeth Ann DUKE et al., Plaintiffs-Appellees, v. The STATE OF TEXAS et al., Defendants-Appellants.

No. 71-2845.

United States Court of Appeals, Fifth Circuit.

April 20, 1973.

Rehearing and Rehearing Denied June 19, 1973.

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Crawford C. Martin, Atty. Gen. of Tex., Howard M. Fender, Asst. Atty. Gen., Austin, Tex., Ralph Mann, Asst. City Atty., Denton, Tex., for defendants-appellants.

Sylvia A. Demarest, Dallas, Tex., Michael J. Whitten, Denton, Tex., for plaintiffs-appellees.

Before GOLDBERG, DYER and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 19, 1973.

SIMPSON, Circuit Judge:

This case involves the recurring and complex problem of the narrow circumstances in which a federal court may enjoin ongoing state judicial proceedings. The lower court issued an injunction restraining the enforcement of an existing state court injunctive order which forbade appellees from speaking upon or entering upon the campus of North Texas State University. Duke v. Texas, E. D.Tex., 1971, 327 F.Supp. 1218. Because the proper disposition of this appeal turned, in part, on the long disputed, never settled question of whether the Civil Rights Act of 1871, Title 42, U.S.C., Section 1983, constitutes an express exception to the broad Congressional policy that federal courts shall not enjoin state proceedings, Title 28, U.S.C. Section 2283, we initially withheld adjudication in this case pending Supreme Court review of that question. Careful study of the Supreme Court's opinion in Mitchum v. Foster, 1972, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705, constrains us, despite the holding of that case, to reverse the judgment below.

The facts of this case are fully set out in the opinion below, 327 F.Supp. 1218 but a brief survey will help delineate the precise issue before us. On February 9, 1971, Herb Ninness, a student at North Texas State University, Denton, Texas, began discussions with appellees, Elizabeth Ann Duke and David Haylon, neither of whom were students at the University, concerning the possibility of appellees speaking on campus at a rally to protest United States military activities in Southeast Asia planned for February 17, 1971. The same day, the North Texas State Student Senate passed a resolution, designated as Bill No. DEM 46, to "support" the rally. On February 11, Ninness told the President's Cabinet of Student Senate "support" for the rally, and of plans to invite appellees as outside speakers. The Cabinet then denied the request to permit outside speakers on the grounds that the rally was not "sponsored" by the Student Senate or any other recognized campus organization. On February 16, the President of the Student Senate vetoed DEM 46. The Senate then passed a resolution "sponsoring" the rally for the next day, and inviting outside speakers including the appellees to speak at the rally. The Senate President vetoed this second resolution. At the Senate meeting, University Vice President for Student Affairs, William Lindley, discussed the various University regulations governing the use of campus facilities and the presentation of outside speakers. Meanwhile, as events escalated University officials were seeking legal advice concerning ways to control the scheduled demonstration. That evening, appellee Haylon stated in a radio interview that he intended to speak at the rally next day.

On the morning of the 17th, a delegation of students appeared before the President's Cabinet and requested that the demonstration be allowed to proceed despite University rules to the contrary. The University President refused to suspend school rules, but stated that the University regulations applied only to the presence of unsponsored "outside" speakers on campus, not to the discussion of important issues by students alone. The University President then authorized the University Chief of Security Police, Tom Martin, to seek injunctive relief in the state courts.

With the assistance of the County Attorney of Denton County, an application for injunctive relief was prepared and presented to Judge Robert Scofield, District Judge of Denton County. Following a brief ex parte hearing, Judge Scofield issued a temporary restraining order prohibiting Mrs. Duke and Mr. Haylon from entering upon the campus of North Texas State University. Meanwhile, the rally had begun at noon, as scheduled. About 12:30 P.M. the sheriff served the temporary restraining order upon Mrs. Duke. Service upon Mr. Haylon was not accomplished at this time. Both plaintiffs subsequently spoke at the rally, Mrs. Duke reading to the crowd from the papers which had been served upon her. The following morning, the sheriff arrested Mrs. Duke and Mr. Haylon for contempt of court. At the same time the temporary restraining order was served on Mr. Haylon.

Following a hearing on February 24 and 26 and March 4, 1971 Judge Scofield granted a permanent injunction against Mrs. Duke and Mr. Haylon. Judge Scofield also found Mrs. Duke guilty of contempt for remaining at the rally after service of the temporary restraining order and found Haylon guilty of contempt for entering the University campus during a snowball fight at a later date. On March 26, 1971, Judge Scofield signed the order for the permanent injunction.

Meanwhile, appellees Duke and Haylon had sought to invoke the aid of the federal courts. On February 24, 1971 appellees filed the instant action in the lower court alleging that the issuance and enforcement of the state court order was depriving them of their rights to free speech under the First and Fourteenth amendments. The complaint sought federal relief, under Title 42, U.S.C., Section 1983, for alleged deprivations of federal constitutional rights committed by the State of Texas; the lower court did not grant any temporary relief, and service of process upon the defendants-appellants was not completed until after Judge Scofield had orally announced his decision to issue a permanent injunction. The lower court held a series of hearings and conferences, and on May 26, 1971, issued an opinion and order.¹ 327 F.Supp. 1218. The lower court issued an injunction restraining the enforcement of Judge Scofield's injunction, and declared sections of the Texas Code and North Texas State University Regulations unconstitutional or unconstitutional as applied to plaintiffs-appellees. This appeal is taken from the federal court injunction.

DISCUSSION

The court in this case issued its permanent injunction under the purported authority of Title 42, U.S.C., Section 1983 which empowers federal courts to vindicate federal constitutional rights on a broad front. In Mitchum v. Foster, supra, the Supreme Court held that Title 42, U.S.C., Section 1983 is an express exception to the Congressional policy, as expressed in the anti-injunction statute, Title 28, U.S.C., Section 2283, that federal courts shall not grant an injunction to stay proceedings in a state court. The fact that Title 28, U.S.C., Section 2283 does not bar federal injunctions issued under the authority of Title 42, U.S.C., Section 1983 is only the beginning, not the end of our inquiry into the propriety of federal court intervention in ongoing state proceedings such as occurred below. The Mitchum court itself ended with a caveat that the effect of Title 42, U.S.C., Section 1983 upon Title 28, U.S.C., Section 2283 should not conclude our analysis:

"In so concluding, we do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. These principles, in the context of state criminal prosecutions, were canvassed at length last Term in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L.Ed.2d 669, and its companion cases." 407 U.S. at 243, 92 S. Ct. at 2162, 32 L.Ed.2d at 718.

Here, while the lower court correctly anticipated Mitchum's express exception decision, it acted without the benefit of the Supreme Court's warning in Mitchum v. Foster, supra. The lower court's action occurred also without the benefit of our own supervening decision in Palaio v. McAuliffe, 5 Cir., 1972, 466 F.2d 1230, and erroneously concluded that "the strict non-interference doctrine elucidated in Younger and its companion cases is limited to State criminal prosecutions . . ." 327 F.Supp. at 1233. As this Court made clear in Palaio v. McAuliffe, supra, however, "the application of the principles of Younger should not depend upon such labels as `civil' or `criminal,' but rather should be governed by analysis of the competing interests that each case presents." 466 F.2d at 1232-1233.

We iterate that the Younger principles of equity, comity and federalism apply to federal intervention in state "civil" as well as "criminal" proceedings, even where the exercise of First Amendment rights is involved; two of our sister Circuits have so held, Cousins v. Wigoda, 7 Cir. 1972, 463 F.2d 603, application for stay denied, 409 U. S. 1201, 92 S.Ct. 2610, 34 L.Ed.2d 15 (Rehnquist, Circuit Justice); Lynch v. Snepp, 4 Cir. 1973, 472 F.2d 769. In Younger, the Supreme Court made it clear "that the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions." 401 U.S. at 45, 91 S.Ct. at 751, 27 L.Ed.2d at 676. This interdiction of federal interference in state judicial proceedings is based on federalism concepts of comity and respect for state functions, op. cit. 401 U. S. at 44, 91 S.Ct. at 750, 27 L.Ed.2d at 675-676. In order to overcome it two express pre-conditions must be shown before relief may be granted to a federal plaintiff. First, the moving party must demonstrate that he will suffer irreparable injury if the federal court stays its hand, and second the moving party must demonstrate that he does not have an adequate remedy at law in the state courts, op. cit. 401 U.S. at 43-44, 91 S. Ct. at 750, 27 L.Ed.2d...