Long v. Robinson

• Decision Date: 11 August 1970
• Docket Number: No. 15033.,15033.
• Citation: 432 F.2d 977
• Parties: Ronald Lee LONG, a minor, by Lewis Daniel Long, his father and next friend, and James Brooks, Jr., a minor by Lillian Brooks, his mother and next friend, individually and on behalf of all other minor children similarly situated and Robert D. Neal, Intervenor, v. Honorable Jerome ROBINSON, Associate Judge, Municipal Court of Baltimore City and State of Maryland.
• Court: U.S. Court of Appeals — Fourth Circuit

432 F.2d 977 (1970)

Ronald Lee LONG, a minor, by Lewis Daniel Long, his father and next friend, and James Brooks, Jr., a minor by Lillian Brooks, his mother and next friend, individually and on behalf of all other minor children similarly situated and Robert D. Neal, Intervenor, v. Honorable Jerome ROBINSON, Associate Judge, Municipal Court of Baltimore City and State of Maryland.

No. 15033.

United States Court of Appeals, Fourth Circuit.

August 11, 1970.

Joseph A. Matera and Michael A. Millemann, Baltimore, Md., for original plaintiffs.

Peter Smith and Edwin S. Villmoare, Baltimore, Md., for intervening plaintiff.

Francis B. Burch, Atty. Gen., Edward F. Borgerding, Robert DiCicco, and Alfred J. O'Ferrall, Asst. Attys. Gen., for the State of Maryland.

MEMORANDUM AND ORDER

WINTER, Circuit Judge.

Application has been made to me as a single United States Circuit Judge for a stay of an order of the district court entered August 6, 1970 pending appeal. Rule 62(g), F.R.Civ.P.

The order sought to be stayed, filed simultaneously with an opinion expressing fully the district court's views, declared unconstitutional certain provisions of the Ann.Code of Md., Art. 26, § 51 et seq., and the Charter and Public Local Laws of Baltimore City, Art. 4, § 240, which exempt Baltimore City from the uniform state definition of juvenile age as 18 years. By virtue of these statutes a child in Baltimore City ceases to be juvenile upon obtaining the age of 16. The age for determining who is a juvenile is important, because juveniles are treated differently from adults when they are charged with a violation of the criminal laws and for other purposes. The order required that all persons between 16 and 18 years of age when arrested (except in the case of alleged capital offenders) who are currently confined in the city jail and other places of incarceration in Baltimore City awaiting trial be released to the juvenile authorities "as expeditiously as possible." The order did not seek to implement in other respects the declaration of invalidity, but the opinion recited that the court was of the view that such affirmative relief was unnecessary because public officials charged with enforcement of the statutes would comply with the declaration without the necessity of an injunction or restraining order. Although not mentioned in the order, the opinion indicated that the principles decided therein should be applied retroactively to May 15, 1969, the date on which suit was instituted.

The stay is sought by defendants on the assertion that the district judge reached incorrect legal conclusions. Defendants cite no authority for this contention not considered by the district court. Factually, defendants contend that they are entitled to a stay because of the substantial administrative and economic burdens which will be placed upon them in complying with the order. These burdens would prove unnecessary and would not be reimbursible if the order is reversed on appeal. Testimony was proffered (the proffer of counsel being accepted as to what the witnesses would have testified without the necessity of hearing the witnesses) that it is estimated that the order will ultimately double the yearly caseload of juvenile causes in Baltimore City. This increase, the proffer concluded, will require an expansion of special temporary detention facilities for juveniles, training schools, courts and court personnel, social workers and other personnel to apprehend, process and deal with the persons accused of offenses other than capital crimes between the ages of 16 and 18. It is said also that equipment to transport juveniles other than the customary "paddy wagon" will be required, and increased burdens will be placed upon the police department of Baltimore City which will require an increase of personnel to avoid a diminution in other police work. Additionally, it is said that the doubling of the caseload will adversely affect the treatment program for juveniles under the age of 16 until the additional facilities and personnel can be provided.

While it is obvious that the annual number of adult causes in Baltimore City will decrease by the same amount that the number of juvenile causes will increase, the effect will not be a "wash" transaction. This is so because juvenile causes require special facilities, special personnel and special procedures. Additionally, many, if not most, charges lodged against those between the ages of 16 and 18 are presently determined in the Municipal Court of Baltimore City. The Municipal Court has no juvenile jurisdiction so that under existing law juvenile causes must be dealt with by the Supreme Bench of Baltimore City. Judges and other court personnel may not be transferred or assigned from the Municipal Court to the Supreme Bench. Because insufficient funds to meet the estimated increased costs of additional juvenile causes are not available, it may be necessary to convene a special session of the General Assembly of Maryland to make appropriations to meet the increased costs attributable to the order.

I.

The legal principles by which an application for a stay of an order of a district court pending appeal is to be judged may be simply stated. The leading authority is Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958) cited with approval in Permian Basin Area Rate Cases, 390 U.S. 747, 773, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). The principles set forth in the Virginia Petroleum Jobbers Association case appear to be the law of this circuit. Airport Commission of Forsyth County, N. C. v. Civil Aeronautics Board, 296 F. 2d 95 (4 Cir. 1961). They have subsequently been expressly adopted in the fifth and second circuits. Belcher v. Birmingham Trust National Bank, 395 F.2d 685 (5 Cir. 1968); Eastern Air Lines, Inc. v. Civil Aeronautics Board, 261 F.2d 830 (2 Cir. 1958). See also Pitcher v. Laird, 415 F.2d 743 (5 Cir. 1969); Covington v. Schwartz, 230 F. Supp. 249 (N.D.Cal.1964), mod. and aff'd, 341 F.2d 537 (9 Cir. 1965). Briefly stated, a party seeking a stay must show (1) that he will likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay.

In the instant case the district judge twice refused oral requests for a stay. Ordinarily, when a party seeking a stay makes application to an appellate judge following the denial of a similar motion by a trial judge, the burden of persuasion on the moving party is substantially greater than it was before the trial judge. See, for example, the opinion of Mr. Justice Jackson in United States ex rel. Kanuf v. McGrath, October Term 1949, quoted in Breswick & Co. v. United States, 75 S.Ct. 912, 100 L.Ed. 1510 (1955); Magnum Import Co. v. Coty, 262 U.S. 159, 43 S.Ct. 531, 67 L.Ed. 922 (1923); Railway Express Agency, Inc. v. United States, 82 S.Ct. 466, 7 L.Ed.2d 432 (1962). See also Organized Village of Kake v. Egan, 80 S.Ct. 33, 4 L.Ed.2d 34 (1959). The premise of this rule, however, is that the motion for a stay has received full consideration by the trial judge. Leaving aside the suggestion advanced by defendants that the district judge did not afford them a full opportunity to develop the facts with regard to a stay beyond those which were adduced at the trial, it appears that some of the statistics and some of the evidence as to the effects of the order were not developed until after the trial. Therefore I will treat the application as if it were made to me in...