Gilmore v. Greene County Democratic Party Exec. Com.
| Decision Date | 23 December 1966 |
| Docket Number | No. 24188.,24188. |
| Citation | 370 F.2d 919 |
| Parties | Thomas E. GILMORE and Percy McShan, Appellants, v. The GREENE COUNTY DEMOCRATIC PARTY EXECUTIVE COMMITTEE et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Fred Wallace, New York City, for appellants.
Perry Hubbard, Tuscaloosa, Ala., for appellees.
Before TUTTLE, Chief Judge, and THORNBERRY and GOLDBERG, Circuit Judges.
ON MOTION TO RECALL MANDATE
This motion to recall the mandate of this court issued on November 3, 1966, and for further relief by way of injunction is denied.
This court, upon application of appellants, expedited a hearing on an appeal from the denial of a temporary injunction by the District Court for the Northern District of Alabama, as to an issue affecting the conduct of the election for certain county officers of Greene County, Alabama, at the November General Election. That appeal was from the denial of a temporary injunction by the trial court in a matter which was ancillary to the main suit which, so far as we are advised, is still pending in the Northern District of Alabama.
The particular issue presented to this court on that appeal was the question whether appellants Gilmore and McShan were entitled to the status of candidates in the general election for the offices sought by them as having been nominated by a convention under the laws of the state of Alabama. The trial court concluded that they were not entitled to the state-required certificate of nomination because the meeting which put their names in nomination did not meet the Alabama statutory requirements of a party convention. In the absence of any Alabama law on the subject, it was necessary for us to construe the Alabama requirements to the best of our ability, and, doing so, we concluded that the trial court erred in denying the certificate of nomination. However, we must bear in mind the fact that this decision was a decision on a point of state law, which the Federal Court had before it only by reason of having pendant jurisdiction ancillary to the main suit. The question presented, not being one of constitutional proportions, is a question that must ultimately be decided by a determination of the applicable Alabama law.
We reversed the judgment of the trial court denying the temporary injunction, and stated that the remand was "in order that the district court may consider the posture of the case in light of our ruling as to the certificate of nomination, and to enable the plaintiffs, if they see fit to do so, to make a determination as to which relief th...
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...of the Supreme Court and appellate courts of the United States rather than the state courts. See Gilmore v. Greene County Democratic Party Executive Committee, 370 F.2d 919, 920 (5th Cir. 1966); Aftanase v. Economy Baler Co., 343 F.2d 187 (8th Cir. 1965); Ark-La Feed & Fertilizer Co. v. Mar......
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...state court judgment, the lack of an adversary relationship between the parties is also grounds. See Gilmore v. Greene County Democratic Party Exec. Com., 5 Cir., 1966, 370 F.2d 919, 920; Meredith v. City of Winter Haven, 5 Cir., 1944, 141 F.2d 348, on remand from 320 U.S. 228, 64 S.Ct. 7, ......
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