Kolski v. Watkins, 75-3013

Decision Date03 January 1977
Docket NumberNo. 75-3013,75-3013
Citation544 F.2d 762
PartiesAlexander S. KOLSKI, Petitioner-Appellant, v. Garland WATKINS, Chief of Police of the City of Miami, Florida, E. Wilson Purdy, Sheriff of Dade County, Florida, and Jack Sandstrom, Director of the Dade County Jail, Respondents-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Louis M. Jepeway, Jr., Miami, Fla., for petitioner-appellant.

Richard E. Gerstein, N. Joseph Durant, Jr., John H. Lipinski, Miami, Fla., for respondents-appellees.

Appeal from the United States District Court for the Southern District of Florida.

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

JOHN R. BROWN, Chief Judge:

Petitioner Alexander S. Kolski appeals from an order of the United States District Court for the Southern District of Florida denying his petition for writ of habeas corpus. On the principles of the abstention doctrine set forth in Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, we affirm.

The Arrest

On December 24, 1973, Petitioner was arrested by two police officers of the City of Miami, Florida, for violating § 38-10 of the Municipal Code of the City of Miami, Florida, which provides that:

"Any person in the City shall be deemed guilty of disorderly conduct who:

(a) Shall make, aid, countenance or assist in making any improper noise, riot, disturbance, breach of the peace or diversion tending to a breach of the peace." 1

Upon his arrest, Petitioner was taken to the City of Miami jail, where he signed a personal recognizance to the complaint filed against him, promising to appear in Court at the time and place to be set. He was then released on his own recognizance.

State Exhaustion Efforts

Before trial was set, Petitioner filed a petition for writ of habeas corpus in the Circuit Court of the Eleventh Judicial Circuit for Dade County (State Circuit Court) challenging the constitutionality of the statute under which he was arrested. The State Circuit Court entered an order sustaining the writ and discharging the Petitioner from custody, 2 on the grounds that the statute was unconstitutional on its face. In reaching this conclusion, the Court noted that the identical ordinance had been declared unconstitutional by the Fifth Circuit in Livingston v. Garmire, 5 Cir., 1971, 437 F.2d 1050 3 and that an identically worded ordinance had been declared unconstitutional in Landry v. Daley, 1968, N.D.Ill., 280 F.Supp. 968.

The respondents appealed the State Circuit Court's order to the State District Court of Appeal (State Appellate Court), which vacated the State Circuit Court's order, and which quashed the writ of habeas corpus, on the ground that, for the purposes of state habeas corpus relief, Petitioner was not in the custody of the City, citing Starr v. Smith, Fla., 1955, 77 So.2d 834. The question of the constitutionality of the statute was not reached by the State Appellate Court. Petitioner's petition for rehearing by the State Appellate Court was denied.

Federal Proceedings

Petitioner then filed the petition for writ of habeas corpus in the United States District Court. The District Court denied the writ, reasoning that:

" * * * An acquittal could result from Petitioner's pending trial, thereby rendering his instant federal claims moot. Any federal disruption at this point would certainly be an unseemly and unwarranted interference which the principle of comity between our dual system forbids * * * ."

"Petitioner's grounds for relief are of the type which the Florida courts can surely recognize and consider. Indeed, the trial court has already expressed an agreement with the merits of Petitioner's claims. Such a situation clearly dictates that this Court refrain from acting as a pretrial motion forum for a state petitioner. A pending state criminal prosecution will not be enjoined absent 'very unusual situations, * * * necessary to prevent immediate irreparable injury.' Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 * * * ." App., at 15-16.

Abstention

In Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and its companion cases 4, the Supreme Court held that a federal court must not interfere with a pending state criminal prosecution either by injunction or declaratory judgment in the absence of extraordinary circumstances 5 showing a threat of irreparable injury 6 which is both great and immediate. This policy, the Court said, is grounded in two sources:

4. The scope of the exception to the general rule of equitable restraint for "other extraordinary circumstances" has been left largely undefined by this Court. In Younger v. Harris, (401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669,) however, the Court gave one example of the type of circumstances that could justify federal intervention even in the absence of either harassment or bad-faith enforcement of a state criminal statute by quoting from Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 85 L.Ed. 1416, (136 A.L.R. 1426):

"One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief. The doctrine may originally have grown out of circumstances peculiar to the English judicial system and not applicable in this country, but its fundamental purpose of restraining equity jurisdiction within narrow limits is equally important under our Constitution, in order to prevent erosion of the role of the jury and avoid a duplication of legal proceedings and legal sanctions where a single suit would be adequate to protect the rights asserted. This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways."

Younger, supra, 401 U.S. at 43-44, 91 S.Ct. at 750, 27 L.Ed.2d at 675.

Abstention Required

We do not believe that the mere fact that the relief sought by Petitioner here federal habeas relief prior to a pending state criminal trial is different from the type of relief sought in Younger makes the requirements announced in Younger any less applicable to this case. There is no practical difference between granting federal habeas relief from a pending state criminal trial and enjoining the same trial. The principles of federalism and comity which underlie Younger are present in both. Thus, we conclude that Petitioner must satisfy the Younger abstention hurdles before we may give federal habeas relief. 7 Cf., e. g., Tatzel v. Hanlon, 5 Cir., 1976, 530 F.2d 1205; Glenn v. Askew, 5 Cir., 1975, 513 F.2d 61.

Here, Petitioner has not overcome those hurdles and we must therefore deny relief. First, Petitioner has not shown that he will suffer irreparable injury by having to try this case in the Florida state courts. Certainly, the cost, anxiety, or inconvenience of defending a single criminal proceeding does not amount to the irreparable injury required by Younger. Younger, supra, 401 U.S. at 46, 91 S.Ct. at 751, 27 L.Ed.2d at 676; Douglas v. City of Jeannette, 1943, 319 U.S. 157, 164, 63 S.Ct. 877, 881, 87 L.Ed. 1324, 1330. Petitioner has also not shown that the state officials responsible for the prosecution are guilty of "bad faith" or "harassment" of Petitioner. Nor has Petitioner shown any other "extraordinary circumstances" which would justify federal court interference with a state pending criminal trial in this case. 8 The statute in this case, challenged as facially unconstitutional by the Petitioner, is certainly of questionable validity. But we certainly cannot say at this stage that this statute is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Younger, supra, 401 U.S. at 53-54, 91 S.Ct. at 755, 27 L.Ed.2d at 681, citing Watson v. Buck, 1941, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416, 1424. As in Younger, "the possible unconstitutionality of a statute 'on its face' does not in itself justify an injunction against good-faith attempts to enforce it * * * ." Younger,supra, 401 U.S. at 54, 91 S.Ct. at 755, 27 L.Ed.2d at 681.

In the posture of this case, where (i) a state criminal prosecution is only pending against Petitioner, (ii) Petitioner can assert the unconstitutionality of the state statute as an affirmative defense in a state trial, (iii) Petitioner has not demonstrated that state prosecuting officials have acted in bad faith or have harassed him, (iv) Petitioner has not demonstrated any irreparable injury which will result from having to defend this case in a state trial, and (v) Petitioner has not demonstrated any other unusual or extraordinary circumstances which would justify federal judicial interference with pending state criminal proceedings, we feel that the considerations of comity and federalism which underlie Younger 9, require that we refuse to grant federal habeas relief to Petitioner until he has given the State of Florida an opportunity 10 to deal with his contentions at trial and on direct appeal 11.

AFFIRMED.

1 Compare with Florida Statute 856.021, a recent amendment of the Florida penal code, which essentially adopts the ALI Model Penal Code. Section 856.021 provides:

"(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of...

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