Melton v. City of Atlanta, Georgia

• Decision Date: 05 February 1971
• Docket Number: Civ. A. No. 14391.
• Citation: 324 F. Supp. 315
• Parties: John MELTON et al., Plaintiffs, v. CITY OF ATLANTA, GEORGIA, a municipal corporation, Sam Massell, Mayor, Atlanta, Georgia, Herbert Jenkins, Chief, Atlanta Police Department, Louis Slaton, District Attorney, Atlanta Judicial Circuit, Fulton County, Georgia, Hinson McAuliffe, Solicitor, Criminal Court of Fulton County, Fulton County, Georgia, Defendants.
• Court: U.S. District Court — Northern District of Georgia

324 F. Supp. 315

John MELTON et al., Plaintiffs, v. CITY OF ATLANTA, GEORGIA, a municipal corporation, Sam Massell, Mayor, Atlanta, Georgia, Herbert Jenkins, Chief, Atlanta Police Department, Louis Slaton, District Attorney, Atlanta Judicial Circuit, Fulton County, Georgia, Hinson McAuliffe, Solicitor, Criminal Court of Fulton County, Fulton County, Georgia, Defendants.

Civ. A. No. 14391.

United States District Court, N. D. Georgia, Atlanta Division.

February 5, 1971.

Hendon & Henley, Decatur, Ga., for plaintiffs.

Tony H. Hight, Asst. Dist. Atty., Atlanta Judicial Circuit, Atlanta, Ga., and Thomas E. Moran, Asst. Sol. Gen., Criminal Court of Fulton County, Atlanta, Ga., for Lewis Slaton and Hinson McAuliffe.

Henry L. Bowden and John E. Dougherty, Atlanta, Ga., for Sam Massell and Herbert Jenkins.

Before MORGAN, Circuit Judge, and SMITH, Chief District Judge and MOYE, District Judge.

OPINION AND ORDER

PER CURIAM.

I. STATEMENT OF THE FACTS

This suit is brought by plaintiffs as a class action, said plaintiffs claiming to represent all present and future Atlanta policemen and the officers and members of the Fraternal Order of Police¹ (herein "FOP").

A three-judge court was convened pursuant to 28 U.S.C. § 2284 to hear the attack upon Georgia Laws of 1953, November session, page 624, codified as Ga.Code Ann. § 54-909 and § 54-9923.²

The event which precipitated the suit was a request made upon the Atlanta City Attorney, Mr. Henry L. Bowden, by Atlanta Alderman Q. V. Williamson for a determination as to whether the FOP violates any state statutes. (The record is unclear as to why the determination was requested, but apparently it had to do with use of police station facilities by the FOP.) In response to the request, Mr. Bowden replied, in a letter to Alderman Williamson, a copy of which is attached to the complaint as Exhibit A, that, in his opinion, the FOP is a union as defined in Ga.Code Ann. § 54-701³ and membership therein by Atlanta policemen would be a violation of state law.

Plaintiffs attack the two statutes as being unconstitutional on their face because of fatal overbreadth. They allege that the statutes infringe upon their First Amendment right of assembly, which constitutional right is enforceable against defendants through the Fourteenth Amendment. The relief asked is a declaratory judgment that the statutes are unconstitutional, and a permanent injunction restraining defendants from enforcing the statutes.

II. JURISDICTIONAL QUESTIONS

Defendant City of Atlanta has moved to dismiss the complaint for failure to state a claim upon which relief can be granted, based on the holding in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed.2d 492 (1960), that a municipality is not a "person" within the meaning of 42 U.S.C. § 1983. Section 1983 provides, in pertinent part, that "Every person who, under color of any statute, ordinance, regulation * * * subjects * * * any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress." (Emphasis added)

The Fifth Circuit has recently considered § 1983 on two occasions. In Harkless v. Sweeny Independent School District, 427 F.2d 319 (1970), petition for cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1970), the Court considered the identical question before this Court. In a considered and thorough opinion reviewing all of the cases, Judge Bell, writing for the Court, concluded that the ratio decidendi of Monroe v. Pape would limit that case to damage suits against a municipality in a respondeat superior situation. The Court said:

We therefore conclude that § 1983 includes school district trustees and school superintendents, acting in their representative as well as their individual capacities, within the meaning of "person" as the term is used in § 1983 for the purposes of the equitable relief sought here.

427 F.2d at 323. This holding would, of course, make a municipality amenable to suit under § 1983 for the purpose of declaratory relief and injunction.

The other case by the Fifth Circuit is Hill v. City of El Paso, 437 F.2d 352 (5th Cir. 1971). The Court there held that neither a city official engaged in the performance of his official duty, nor a municipality would be subject to a suit for declaratory relief or injunction under § 1983, basing its reasoning upon Monroe v. Pape, supra. There are at least two alternative grounds for the Fifth Circuit's affirmance of the District Court, and it seems that the language holding § 1983 inapplicable to municipalities is obiter dicta. In addition, if the Court's alternative holding that the District Court should have abstained from exercising jurisdiction were followed, it would not have been necessary to reach the § 1983 question. Finally, it is obvious that the Court in Hill did not consider Harkless, or the line of cases cited therein.

This Court is persuaded by the reasoning in Harkless, and holds that the City of Atlanta is a "person" within the meaning of § 1983 for the purpose of a suit seeking declaratory relief and injunction. Accord, Moreno v. Henckel, 431 F.2d 1299 (5th Cir. 1970); Atkins v. City of Charlotte, 296 F.Supp. 1068 (W.D.N.C.1969) (Three-Judge Court); Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir. 1961); Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1968). It follows that the complaint does state a claim upon which relief can be granted, and the motion to dismiss is denied.

The State of Georgia, upon which a copy of the complaint and order convening this three-judge court was served pursuant to 28 U.S.C. § 2284, has provided the Court with a very fine amicus curiae brief in defense of the statutes attached, and inter alia, argues that there is not an "actual controversy" present within the meaning of the declaratory judgment statute.

The Court cannot, of course render an advisory opinion, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), and can only act if the controversy is "Definite and concrete, touching the legal relations of parties having adverse legal interests." International Longshoremen's Ass'n, AFL-CIO v. Seatrain Lines, 326 F.2d 916 (2d Cir. 1964). In the context of the Declaratory Judgment Act the word "actual", as modifying "controversy", is in the statute for emphasis only, and neither increases nor decreases the need for a "controversy". Southern Ry. Co. v. Brotherhood of Locomotive Firemen and Engineers, 223 F.Supp. 296 (M.D. Ga.1962), aff'd, 324 F.2d 503 (5th Cir. 1963).

There is an "actual controversy" present in this case.⁴ This is evidenced by the letter to Mr. Bowden from Alderman Williamson, and the reply thereto. Moreover, counsel for defendant City of Atlanta advised the Court at the hearing that the natural sequence of events, based on the ruling by Mr. Bowden, would be to institute disciplinary proceedings or recommend prosecution. It is enough that the "Damoclean" presence of the statute hangs over the FOP. The defendants, state and municipal officials, uphold, as they must, state laws applicable to them and which have not hitherto been held unconstitutional; plaintiffs, as is their right, now attack the constitutionality of these laws.

In addition plaintiffs allege that "plaintiffs, and members of their class have been limited in promotions, terms and conditions of employment, and threatened with loss of their jobs and with criminal prosecutions * * *" Complaint, ¶ V(b). Those allegations are denied by defendant. Although the Court did not feel it necessary to hear any evidence on these allegations, it may consider the issue raised as evidencing to some extent that there is an actual controversy here present within the meaning of 28 U.S.C. § 2201.

III. THE CONSTITUTIONAL QUESTION

At the outset it is important to note what plaintiffs are not contending. Plaintiffs are not contending that the state does not have a legitimate interest in protecting the health, welfare and safety of its citizens, but merely that it has attempted to accomplish that end by an overbroad statute. Neither are plaintiffs contending that the City of Atlanta or its police department could be compelled to negotiate with the FOP or could not prohibit or limit strikes. Plaintiffs only contend that Ga.Code Ann. §§ 54-909 and 54-9923 attempt to accomplish a legitimate end (securing complete impartiality on the part of police officers particularly in labor strife situations) in an unconstitutional manner, and are therefore unconstitutional on their face.

Plaintiffs case is premised upon the right to assemble guaranteed by the First and Fourteenth Amendments. There can be no doubt that the right of association is protected by the First Amendment. Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L. Ed.2d 992 (1964); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). By the same token, there can be no doubt that the State has a legitimate interest in protecting the welfare of its citizens. The conflict between these two laudible objectives is found in the second sentence in § 54-909. That sentence provides: "That to insure an impartial police force in the State of Georgia, no person employed by any city or county within the State of Georgia, or by the State of Georgia as a policeman shall join or belong to any labor union."

The Supreme Court, in N.A.A.C.P. v. Alabama ex rel. Flowers, said:

This Court has repeatedly held that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of

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