Goldman v. Knecht

• Decision Date: 03 February 1969
• Docket Number: Civ. A. No. C-974.
• Citation: 295 F. Supp. 897
• Parties: Charles GOLDMAN, John Kirkland, Plaintiffs, v. Robert KNECHT, Donald Vendell, Marvin Nelson, Duke Dunbar, Rex Scott, David Voorhis, Kelly Gaskill, and James Smith, Defendants.
• Court: U.S. District Court — District of Colorado

295 F. Supp. 897

Charles GOLDMAN, John Kirkland, Plaintiffs, v. Robert KNECHT, Donald Vendell, Marvin Nelson, Duke Dunbar, Rex Scott, David Voorhis, Kelly Gaskill, and James Smith, Defendants.

Civ. A. No. C-974.

United States District Court D. Colorado.

February 3, 1969.

Stevens & Miller, by Robert Bruce Miller and William Redak, Boulder, Colo., for plaintiffs.

Walter L. Wagenhals, City Atty., Boulder, Colo., and Aurel M. Kelly, Asst. Atty. Gen. for the State of Colorado.

Morgan Smith, Public Defender of Adams County, Brighton, Colo., amicus curiae.

Before BREITENSTEIN, Circuit Judge, and CHILSON and DOYLE, District Judges.

MEMORANDUM OPINION AND ORDER

WILLIAM E. DOYLE, District Judge.

The complaint in this case questions the constitutionality of the Colorado vagrancy statute, C.R.S.1963, § 40-8-19, as amended, and demands injunctive and declaratory judgment relief.

Plaintiffs have been and allegedly are being threatened with prosecution under this statute. In seeking relief in this Court, they invoke 28 U.S.C. § 1343(3) & (4), and, in essence, complain that the application of the Colorado statute to them violates rights guaranteed by the Fourteenth Amendment of the Constitution of the United States, together with the specified rights incorporated in that Amendment, and specifically set forth in the First, Fifth and other Amendments, commonly referred to as the Bill of Rights. The defendants are law enforcement officers of the County of Boulder, and include the Boulder District Attorney as well as the Attorney General of the State of Colorado.

Since the suit seeks injunctive relief against the actions of the officers of the State in the enforcement of the statute, a three-judge court has been constituted pursuant to 28 U.S.C. §§ 2281, 2284.

There has been an evidentiary hearing. Arguments have been heard, briefs have been filed, and the matter now stands submitted.

I. JURISDICTION

Inasmuch as the case draws into question the validity under the Constitution of the United States of a state statute and seeks protection against its enforcement as to plaintiffs, we conclude that it is indeed an action which arises under the Constitution and laws of the United States, and that we have jurisdiction to hear and determine it. The case is also a proper one for convening a three-judge district court because it seeks injunctive relief against the enforcement or execution of a state statute.¹

II. FACTUAL BACKGROUND

The statute which is here under attack defines a vagrant as a person able to work in an honest and respectable calling, who is found loitering or strolling about, frequenting public places where liquor is sold, begging or leading an idle, immoral or profligate course of life, or not having any visible means of support. It calls for imprisonment not to exceed ninety days, together with hard labor, and further provides that if a prisoner refuses to work he may be put in irons and kept on bread and water until he shall comply with this requirement of work.²

We have before us a transcript of the prosecution of the defendants in the County Court of Boulder County, and also a transcript of a habeas corpus proceeding before the District Court of the Judicial District of which the County of Boulder is a part. In the latter proceedings, the plaintiffs' writ of habeas corpus was granted and charges were not filed. In the former proceedings, however, the defendants were convicted of vagrancy and were sentenced and appealed. At the present time, this appeal is before the District Court in and for the County of Boulder. We are told that the appeal is not being processed and that the case is in a somewhat dormant state.

The State Court transcripts have been received and are considered not for the purpose of reviewing the evidence for legal sufficiency, but, rather, as showing the relationship of plaintiffs to the enforcement of the statute. These facts also serve to give some character to the present case, revealing as they do the use and effect of the statute in actual cases.

At the time of their first arrest on June 21, 1968, the plaintiffs were neither "loitering" nor "strolling about." The evidence establishes that they were doing nothing. The arrest occurred in a basement apartment, a place described as a hippie hangout or hippie haven. Although the officers who entered the apartment did not have a warrant, they were invited inside and were allowed to search for narcotics. The defendants were arrested on suspicion of violating the narcotics laws, but narcotics charges were not filed and all of the occupants of the apartment, except the two plaintiffs, were subsequently released.

When the police entered the apartment there were approximately ten people present. Some of them were engaged in cleaning the apartment, but most of them were merely sitting in the room talking. Apparently, the basis for singling out plaintiffs for the filing of the charges was their inability to furnish any identification, together with their complete lack of funds. Also, plaintiffs were then "residing" in places other than the place of arrest.

Vagrancy charges were filed against the plaintiffs in the Boulder County Court, and they were tried and convicted on August 21, 1968. Their attorneys brought the constitutional issues to the attention of the trial court both before and during the subsequent trial. The county judge expressed intent to find the statute constitutional regardless of argument to the contrary. Trial was had to a jury and guilty verdicts were returned. On the same day the defendants were sentenced to thirty days in jail.³ They appealed these convictions to the District Court, but as of this date no action has been taken on this appeal. The present action has been pending since before this trial, and conceivably the appeal is in abeyance pending the outcome of the present proceeding.

The second arrest occurred on August 13, 1968, at a mountain camp near Boulder. The police had gone to this camp to execute a search warrant. They were seeking narcotics and dangerous drugs, but did not find any which could be linked to plaintiffs. Nevertheless, twenty-four persons were arrested and ten of these, including plaintiffs, were held. The police, as shown by the habeas corpus transcript, decided who should be released and who should be held to face vagrancy charges. It also appeared that narcotics were found in connection with this raid, but it was impossible for the officers to connect any of the arrested persons to the contraband.⁴ Following a habeas corpus hearing, the District Court issued the writs and released the plaintiffs. This case has not been pursued further.

The defendants do not dispute that this Court has jurisdiction to hear and determine the case. Nor do they question that it is a proper situation for convening a three-judge district court. Their main argument is that in the exercise of our discretion we should abstain from deciding it. In the alternative, they contend that the statute is not in violation of the Federal Constitution.

III. THE ABSTENTION QUESTION

Defendants argue that main elements of the abstention doctrine are present. These were first enunciated in Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and are: (1) avoidance of an unnecessary or premature decision of the Federal Constitutional question, and (2) avoidance of unnecessary friction in federal-state relationships. Defendants concede that both elements must be present, but say that the case can be decided on state grounds and that we should stay proceedings to give the state court an opportunity to determine the merits of the case.

The plaintiff in Pullman was seeking to enjoin enforcement of an order of the Texas Railroad Commission, claiming that the order denied its rights under the Fourteenth Amendment, and that under Texas law the Commission lacked authority to make the order in question. It is clear in that case that the federal court had power to decide not only the constitutional question, but also the ancillary state issues. Nevertheless, the Supreme Court held that it was the better part of wisdom to refrain from deciding the case. The Court unanimously held that the federal court of equity, under the circumstances there present, should avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication. The trial court was ordered to abstain from deciding the case, but to retain jurisdiction until the parties had had an opportunity to obtain from the state court a decision on the state issues involved. Thus it turned on the proposition that there were ancillary state issues which could determine the case, hence no necessity for then deciding the federal questions.

Since the Pullman decision, the Supreme Court has applied the abstention doctrine in a wide variety of cases.⁵ It has also tended in recent years to severely restrict and discourage the application of this principle.⁶ It cannot be said though that there are any clear criteria other than the susceptibility of the statute to state construction or state law which will avoid a constitutional decision. Like other equity evaluations each case is examined and such things as the importance of the right, together with the seriousness of the threatened injury are considered. The area of discretion is by no means broad. Both the decisions and the language of the cases emphasize this. In Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391 (1967), the Supreme Court observed that "the judge-made doctrine of abstention * * sanctions an escape from federal courts only in narrowly limited `special circumstances'" 389 U.S. at 248, 88 S.Ct. at 395, and it is not to be ordered unless the state statute "is of an uncertain nature and is obviously susceptible of a limiting construction." 389 U.S. at 251 n. 14, 88 S.Ct. at 397 n. 14. In County of Allegheny v. Frank Mashuda Co., 360 U. S....