Leonard v. City of Columbus

• Decision Date: 26 October 1977
• Docket Number: No. 75-2344,75-2344
• Citation: 565 F.2d 957
• Parties: Robert LEONARD et al., Plaintiffs-Appellants, v. The CITY OF COLUMBUS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 957

565 F.2d 957

Robert LEONARD et al., Plaintiffs-Appellants, v. The CITY OF COLUMBUS et al., Defendants-Appellees.

No. 75-2344.

United States Court of Appeals, Fifth Circuit.

Oct. 26, 1977.

Specially Concurring Opinion Jan. 4, 1978.

Ellen Leitzer, American Civil Liberties Union Foundation of Ga., Inc., Atlanta, Ga., Joel M. Gora, American Civil Liberties Union, New York City, Margie Pitts Hames, Atlanta, Ga., Melvin L. Wulf, Amer. Civil Liberties Union Foundation, New York City, for plaintiffs-appellants.

Lennie F. Davis, City Atty., E. H. Polleys, Jr., Assoc. City Atty., Columbus, Ga., for defendants-appellees.

Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges.

BY THE COURT:

The panel opinion in this case is reported, Leonard v. City of Columbus, 5 Cir., 1977, 551 F.2d 974.

Upon rehearing at New Orleans on September 28, 1977, the Court en banc adheres to the panel opinion as published.

The judgment of the District Court is

REVERSED and REMANDED.

GEE, Circuit Judge, with whom CLARK and RONEY, Circuit Judges, join, specially concurring:

Though I agree with the court's decision, I wish to acknowledge developments in the case law since Moreno v. Henckel, 431 F.2d 1299 (5th Cir. 1970), lest its bare citation convey the impression that exhaustion and abstention in section 1983 suits are not issues for future argument in this circuit.

The first of these developments came less than a year after Moreno, with the Supreme Court's opinion in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). And although the Younger abstention doctrine has thus far found application only in cases concerned with the exercise of state enforcement powers, it could conceivably require federal deference whenever a strong state interest has attached, as when a state court becomes substantially involved in a private action against a defendant who wishes to raise constitutional issues in federal court. See Developments in the Law Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1313-14 (1977). See also Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).

The second post-Moreno development perhaps foretells an erosion of McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), which established that persons suing under section 1983 need not exhaust state administrative remedies before seeking federal relief. In its later decision of Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), the Court intimated that administrative exhaustion might be appropriate in section 1983 actions when the state initiates the administrative proceeding and when the individual charged suffers no deprivation prior to the completion of that proceeding. Id. at 574-75, 93 S.Ct. 1689.

Finally, I note several cases, as yet of uncertain import, in which the Supreme Court has relied upon the adequacy and availability of state remedies. See Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 1415-16, 51 L.Ed.2d 711 (1977); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Of course, both Ingraham and Paul are explainable as attempts to limit the scope of expansively worded constitutional...