Harris v. Luckey, 90-9062

• Decision Date: 16 November 1990
• Docket Number: No. 90-9062,90-9062
• Citation: 918 F.2d 888
• Parties: Joe Frank HARRIS, Governor, et al., Petitioners, v. Horace LUCKEY, III, et al., Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 888

918 F.2d 888

Joe Frank HARRIS, Governor, et al., Petitioners, v. Horace LUCKEY, III, et al., Respondents.

No. 90-9062.

United States Court of Appeals Eleventh Circuit.

Nov. 16, 1990.

William B. Hill, Jr., Michael E. Hobbs, Alfred L. Evans, Jr., Atlanta, Ga., for petitioners.

David A. Webster, Emory University School of Law, Robert B. Remar, Neil Bradley, Laughlin McDonald, Kathleen Wilde, Derek Aphrin, American Civ. Liberties Union Foundation, Inc., Atlanta, Ga., for respondents.

Application for Permission to Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT, COX and BIRCH, Circuit Judges.

BIRCH, Circuit Judge:

Appellants (defendants below) have presented to this court a petition for permission to appeal pursuant to 28 U.S.C. Sec. 1292(b) and Fed.R.App.P. 5. For the reasons that follow, the petition is GRANTED.

I. BACKGROUND

Appellees (plaintiffs below) filed their complaint in this case on October 24, 1986 and their amendment to that complaint on November 25, 1986. The class action was initiated by two groups of plaintiffs: (1) all present and future indigent persons charged with criminal offenses in the courts of Georgia; and, (2) all attorneys who represent indigent defendants in those courts.

Plaintiffs contend that certain systemic deficiencies ¹ in the Georgia indigent criminal defense system deny indigent criminal defendants their sixth amendment right to counsel, their due process rights under the fourteenth amendment, their right to bail under the eighth and fourteenth amendments, and equal protection of the laws guaranteed by the fourteenth amendment. Plaintiffs seek intervention by the federal courts in the state indigent criminal representation system to establish minimum constitutional standards and to enforce adherence to those court-ordered standards.

The defendants in the action are, respectively, the Governor of the State of Georgia and all judges of the state courts of Georgia who appoint attorneys or otherwise arrange for the defense of indigent criminal defendants.

Defendants, through their counsel, the Attorney General of the State of Georgia, filed a motion to dismiss based upon several alternative theories. ² On June 24, 1987, the district court entered an order dismissing the case, concluding that jurisdiction was lacking due to "the State's invocation of Eleventh Amendment immunity". ³ Thereafter, in response to plaintiffs' motion for reconsideration, the district court entered a subsequent order on December 31, 1987 which held "that assuming that the Eleventh Amendment is no bar to maintenance of this action, the action must be dismissed for failure to state a claim for which relief can be granted". ⁴

An appeal to this court followed. Defendants' appellate brief and reply briefs focused on the eleventh amendment and statement of claim issues and did not advance any arguments addressing issues of equity, comity or federalism. Plaintiffs' briefing was consistent with the approach employed by defendants. In seeking to have this court affirm the dismissal by the district court on any grounds, ⁵ the defendants presented several arguments ⁶ in their brief on appeal. None of these arguments, however, embraced the concepts of comity or federalism. ⁷ A panel of this court ⁸ entered its decision on November 23, 1988. Luckey v. Harris, 860 F.2d 1012 (11th Cir.1988). That opinion did not address the abstention doctrine.

The defendants filed a suggestion of rehearing en banc on December 13, 1988. In that application to the court, defendants cited neither Younger v. Harris nor O'Shea v. Littleton, and invocation of the abstention doctrine was not advanced or suggested. Thereafter, a poll was conducted pursuant to I.O.P. 5 (under Fed.R.App.P. 35 and 11th Cir.R. 35). Because an "affirmative vote of a majority of circuit judges in regular active service" was not obtained, the court entered a per curiam order on December 29, 1989 denying the petition for rehearing en banc. ⁹ A dissent ¹⁰ was filed with the order of denial. ¹¹ The panel's per curiam opinion did not address the abstention doctrine issue, but the dissent noted that the abstention doctrine had not been "asserted expressly" before concluding that the court should have considered the issue. ¹² In his dissent, Judge Edmondson also stated that the panel's opinion in the instant case conflicted with two prior decisions which were binding on the court: Gardner v. Luckey, 500 F.2d 712 (5th Cir.1974), cert. denied, 423 U.S. 841, 96 S.Ct. 73, 46 L.Ed.2d 61 (1975) and Tarter v. Hury, 646 F.2d 1010 (5th Cir. Unit A June 1981). Thereafter, the Supreme Court denied defendants' certiorari petition.

This court, in its initial opinion reversing the dismissal of the action by the district court, remanded the case "for further proceedings consistent with this opinion." Luckey v. Harris, 860 F.2d at 1018. On remand, defendants filed a motion to dismiss based upon the abstention doctrine and the rulings of the Fifth Circuit applying that doctrine, Gardner v. Luckey and Tarter v. Hury, which they argued would be binding on this court under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). Defendants stated that since the abstention doctrine question had not been presented to, or adjudicated by, this court there was no "law of the case" problem before the district court. ¹³ The district court disagreed.

In an order entered on July 10, 1990, the district court thoroughly considered the abstention issue before concluding that defendants' motion to dismiss, based on considerations of comity, equity and federalism, was meritorious. However, the court felt constrained by the "law of the case" to deny defendants' post-remand motion to dismiss. In pertinent part, the district court opined as follows:

[T]his Court believes that the abstention doctrine applies because, in its opinion, requiring the state, prospectively, to run an indigent defense system consistent with constitutional norms is an unwarranted intrusion into the business of the state.

Despite the Court's perception of the strength of its opinion based on what it believes to be settled law, the entire Eleventh Circuit was faced with Judge Edmondson's arguments and declined to rehear the case, or even to stay the mandate pending Supreme Court review of the certiorari petition. This situation puts the Court in a difficult situation. On the one hand, as Defendants argue in their reply brief, the appellate panel did not expressly reach abstention and the denial of rehearing without an opinion bears little, if any, precedential weight.

On the other hand, by soundly reversing this Court, denying rehearing, denying rehearing en banc in the face of Judge Edmondson's dissent, and denying Defendants' motion to stay the mandate pending the Supreme Court's disposition of Defendants' petition for a writ of certiorari, the Eleventh Circuit gave this Court the clear message that this case should be heard. The Court therefore concludes, under the law of the case, that the abstention doctrine does not apply. See Litman v. Massachusetts Mutual Life Insurance Company, 825 F.2d 1506, 1510 (11th Cir.1987), cert. denied, 484 U.S. 1006 [108 S.Ct. 700, 98 L.Ed.2d 652] (1988). The Court's conclusion is reinforced by the fact that abstention goes to the equitable jurisdiction of this Court such that the appellate court should have ordered that this Court abstain had it concurred in Judge Edmondson's reasoning.

The Court makes clear that it would have dismissed the complaint on abstention grounds were it not for this Court's conclusion regarding the Eleventh Circuit's rulings. The Court is sympathetic to the concerns of the Plaintiffs, as it believes that the relief they seek would make it easier for the state to provide for the constitutional rights of indigent criminal defendants. The Court's concern, however, is that the far reaching remedy sought runs afoul of federalism principles that lie at the heart of our constitutional form of government.

Due to the significance and magnitude of this case, however, the Court sua sponte certifies, under 28 U.S.C. Sec. 1292(b), that this ruling "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." If this Court has erred in its interpretation of the Eleventh Circuit rulings, then the error can be corrected before the necessarily protracted proceedings in this complex case of first impression have consumed substantial judicial and financial resources.

District Court Order at 10-12 (July 10, 1990) (footnote omitted).

After entry of the order by the district court, quoted in pertinent part above, defendants filed a petition for permission to appeal to this court pursuant to 28 U.S.C. Sec. 1292(b) and Fed.R.App.P. 5. As framed by defendants, the issue to be considered on this application is "whether there is a 'law of the case' barrier to the District Court's jurisdictional dismissal of this case in accordance with controlling Supreme Court and Eleventh Circuit precedent on the applicability of the abstention doctrine of Younger v. Harris, 401 U.S. 37 [91 S.Ct. 746, 27 L.Ed.2d 669] (1971)." ¹⁴

II. DISCUSSION

Under 28 U.S.C. Sec. 1292(b), the district court may certify an interlocutory order for appeal if the order (1) involves a controlling question of law, (2) as to which there is substantial ground for difference of opinion, and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. Ray v. Edwards, 725 F.2d 655, 658 (11th Cir.1984). The statute requires an "order" from the district court that is directly associated with the disposition of at least a claim, if not the entire case itself. See Church of Scientology Flag Service Org., Inc. v. City of Clearwater, 777 F.2d 598, 608 (...