Ealy v. Littlejohn

• Citation: 569 F.2d 219
• Decision Date: 08 March 1978
• Docket Number: No. 74-3913,74-3913
• Parties: Sandy EALY et al., Plaintiffs-Appellants, v. Talmadge LITTLEJOHN et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 219

569 F.2d 219

Sandy EALY et al., Plaintiffs-Appellants, v. Talmadge LITTLEJOHN et al., Defendants-Appellees.

No. 74-3913.

United States Court of Appeals Fifth Circuit.

March 8, 1978.

Lewis Myers, Jr., Oxford, Miss., John E. Jackson, Jr., Brookhaven, Miss., for plaintiffs-appellants.

Ed D. Noble, Jr., Jackson, Miss., for defendants-appellees.

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

Before BROWN, Chief Judge, JONES and GOLDBERG, Circuit Judges.

JOHN R. BROWN, Chief Judge:

In this 42 U.S.C.A. § 1983 action, the officers and members of the Marshall County United League sought a preliminary injunction against Mississippi officials who had allegedly interfered with the exercise of their First Amendment rights. The District Court denied preliminary relief. We reverse and remand for proceedings not inconsistent with this opinion.

I. The Plot

On June 28, 1974, Butler Young, Jr., a twenty-one-year-old black youth, died in Byhalia, Mississippi, from a gunshot wound inflicted by law enforcement officers of Byhalia and Marshall County, Mississippi. ¹ The law enforcement officers were not immediately subjected to prosecution by the state, and this delay precipitated protests and boycotts by the black community. The boycotts were organized and supervised by the Marshall County United League, an association of black citizens of Byhalia, Marshall County, Mississippi.

Subsequently, the League was enjoined by the Chancery Court of Marshall County from carrying out the boycotts. Its members and officers then attempted, without success, to enjoin these state court proceedings in federal District Court. On appeal to this Court, we reversed and directed the issuance of an injunction against the enforcement of the state injunction. ² The latter injunction is now in force and is effective to restrain the state court from interfering with the rights of the parties to engage in peaceful protests and boycotts.

District Attorney Talmadge Littlejohn presented the Butler Young, Jr. incident to the Marshall County grand jury during its August 1974 term. That body did not, however, return indictments against any of the three police officers who had custody of Young the night of his death.

After the grand jury recessed on August 21, 1974, the League prepared and circulated among the citizens of the county a leaflet which accused the law enforcement officers of Byhalia, the county sheriff's department and the state highway department of failing to conduct a serious investigation into the death of Young because he was black. The leaflet also accused Littlejohn of acting as defense attorney for the officers rather than as prosecutor. It additionally labeled the grand jury hearing a "farce." When, on September 6, 1974, the leaflet was brought to the attention of Littlejohn and Judge W. W. Brown of the Circuit Court of Marshall County, an order was immediately entered by Judge Brown calling the grand jury back into session. ³ By law, the term of the Circuit Court ended at midnight, September 7, 1974. But pursuant to Judge Brown's order, the grand jury was to remain in session until it had interrogated all witnesses who, in its judgment, might have knowledge of any improper activities. Through Littlejohn, the grand jury caused subpoenas to issue to all officers and several members of the United League of Marshall County. The records and minutes of the League were also subpoenaed.

On Saturday, September 7, 1974, the grand jury reconvened and remained in session for two days. During that time Littlejohn and the grand jurors conducted an investigation into the origin of the leaflet and the information on which its accusations were based. The grand jury also attempted to ascertain if any of those responsible for the leaflet had any personal knowledge, or knew of any other person having personal knowledge, of the facts surrounding the fatal shooting of Butler Young, Jr. League members and officers were also questioned about the internal and financial operations and activities of their organization. A final report was made to the court at the conclusion of the investigation, the grand jury recommending that:

(T)he proceedings of this Grand Jury (be) transcribed by the Court Reporter and that copies of such proceedings be released to the news media, the general public, the District Attorney, the County Attorney, and the Mississippi State Tax Commission, so that a proper evaluation may be made thereof, and appropriate action taken, if advisable as to the matters contained therein.

Report of the Grand Jury, filed September 11, 1974, at 3 (Exhibit 6).

Following the issuance of this report ⁴ the League filed its § 1983 action against Littlejohn, Judge Brown and D. Rook Moore, the County Attorney. ⁵ The complaint alleged that the issuance of the subpoenas and the grand jury inquiries into the League's activities, organization, financing, and the leaflet were carried out in bad faith with the purpose of harassing and intimidating the plaintiffs in violation of their First Amendment rights. The plaintiffs requested a temporary, preliminary and permanent injunction ⁶ restraining the defendants from interfering in the exercise of those rights. It further called for the expunction of portions ⁷ of the transcript ⁸ from the state court records and an injunction against Littlejohn and Moore prohibiting them from instituting any prosecution of plaintiffs or plaintiff class based on their grand jury testimony. ⁹

II. The Book Under Review

At the outset of its discussion on the issuance of an injunction, the District Court pointed to certain issues which it believed did not require consideration. ¹⁰ Stating that "the only viable question" before it was "whether the transcript should be made available to state agencies or departments and the public generally," the District Court concluded on the basis of its in camera inspection of the transcript that there had been no infringement of plaintiffs' First Amendment rights. ¹¹ The Court then denied injunctive relief, citing and quoting the anti-injunction statute, 28 U.S.C.A. § 2283, and a passage from Younger v Harris, 1971, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669, 675. ¹²

On the question of expunction, the District Court concluded that the state court was the proper forum to entertain such a claim. In answering the plaintiffs' contention that a state remedy might prove troublesome since it was Judge Brown who would necessarily have to hear such a case, the Court below pointed out that the plaintiffs would have open to them the right of appeal. ¹³

Lastly, the District Court held that the plaintiffs had not met the prerequisites set forth in Canal Authority v. Callaway, 5 Cir., 1974, 489 F.2d 567, for granting extraordinary relief.

We do not agree with the District Court.

First, we take exception to the manner in which "the only viable issue" was framed. Even assuming that there was but one viable issue, ¹⁴ it was not whether the transcript should be made available to state agencies or departments and the public generally. Judge Brown's October 21, 1974 order expressly stated that the grand jury proceedings were not to be made available to the public and the news media. ¹⁵ Furthermore, that same order would allow not only state agencies to seek court permission to examine the grand jury proceedings but federal officials and future Marshall County grand juries as well. ¹⁶

Second, for reasons discussed more fully below, we cannot agree that there was no abridgement of plaintiffs' First Amendment rights.

Third, to the extent that the District Court relied on 28 U.S.C.A. § 2283 to stay its hand, such reliance in a § 1983 action was misplaced in view of the Supreme Court's clear holding in Mitchum v. Foster, 1972, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705, that § 1983 is an expressly authorized exception to the anti-injunction statute.

Fourth, as discussed in Part IV, reliance on Younger v. Harris, supra, is a much more complicated matter than the District Court opinion would indicate.

Fifth, if the District Court believed that the availability of a state judicial remedy absolutely barred federal relief, ¹⁷ it was in error. Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, is clear precedent for holding that those whose civil rights have been violated need not look first to state courts for their redress.

Because of the result we reach here, our attention will focus primarily on (i) the substantive § 1983 claim involving the First Amendment violation; and (ii) the applicability of the doctrine of equitable restraint to the unique fact situation presented here.

III. The Premiere Amendment

We begin our foray into the appellants' § 1983 claim with the observation that the right of association guaranteed by the First and Fourteenth Amendments is zealously guarded by this Nation's courts. E. g., Gibson v. Florida Legislative Comm., 1963, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929; NAACP v. Alabama, 1958, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. The officers and members of the United League of Marshall County are free to enjoy that right. See id.; NAACP v. Button, 1963, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Bates v. Little Rock, 1960, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480. They are also beneficiaries of a right fundamental to the democratic process: to speak their minds free of unwarranted governmental restraint. See, e. g., NAACP v. Button, supra.

Equally important to the democratic process is the grand jury which serves two salient functions. First, it determines if there is probable cause to believe a crime has been committed; second, it shields citizens from arbitrary and oppressive governmental action. E. g., United States v. Briggs, 5 Cir., 1975, 514 F.2d 794, 800. The grand jury and other investigatory bodies operate on the premise that the public is entitled to every citizen's evidence unless...