Morgan v. Wofford

• Citation: 472 F.2d 822
• Decision Date: 29 January 1973
• Docket Number: No. 72-1210.,72-1210.
• Parties: Robert John MORGAN, for himself and for all others similarly situated, Plaintiff-Appellant, v. Charles A. WOFFORD, as Judge of the Superior Court of Fulton County et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

472 F.2d 822 (1973)

Robert John MORGAN, for himself and for all others similarly situated, Plaintiff-Appellant, v. Charles A. WOFFORD, as Judge of the Superior Court of Fulton County et al., Defendants-Appellees.

No. 72-1210.

United States Court of Appeals, Fifth Circuit.

January 29, 1973.

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Emily Carssow, Morris Brown, Charles Morgan, Jr., Norman Siegel, Atlanta, Ga., for plaintiff-appellant.

Charles A. Wofford, Atlanta, Ga., Robert J. Castellani, Arthur K. Bolton, Atty. Gen., H. Andrew Owen, Jr., Atlanta, Ga., for defendants-appellees.

Before TUTTLE, BELL and AINSWORTH, Circuit Judges.

TUTTLE, Circuit Judge:

This action attacks the constitutionality of a Georgia statute making monetary restitution to the victim by the convicted perpetrator of a crime a condition of probation.¹ The challenges made are: (1) that the statute as applied by defendants violated the due process clause of the Fourteenth Amendment because no court hearing was held to determine the amount of restitution to be demanded of the probationer, and (2) that the statute on its face violates the equal protection clause of the Fourteenth Amendment because it calls for the revocation of probation for, and incarceration of, indigent defendants who cannot pay the restitution, while non-indigent defendants may avoid incarceration by paying the restitution. The district court dismissed both claims as nonjusticiable, saying that "the record does not indicate that the threat of incarceration was imminent."

The relevant facts are not in dispute. Morgan, the plaintiff-appellant, received a sentence of "five years, $1,000 fine, restitution, and probated" on June 11, 1968, following a plea of guilty to the charge of receiving stolen goods. The sentence was to be probated "on payment of fine $1,000 and restitution if any, on condition defendant not violate the laws of Georgia and illegible of the Court." The order of probation signed the same day noted: "Fine of $1,000, restitution of $ ___ (T.B.D.) both payable through the adult probation office at the rate of $10 weekly until both are paid in full."

According to the testimony of the chief probation officer, the normal practice for probation orders is to leave the judgment open and allow the victim of the crime to certify his losses to the probation office at a later date. In this case, the records of the criminal court clerk's office contain no order or judgment by the trial court containing any figure for the amount of restitution to be paid by Morgan. Only upon testimony of the probation officer does the record below indicate that the victim's total loss was some $11,000, that the victim recovered about $4,000 in goods, and that his loss "not covered by insurance" was approximately $3,000. In a later copy of the "order of probation," apparently filled out as to amount by the probation office, there had been inserted in the blank space of the copy of the original order the figure $7,345.69. Morgan was told at a still later date that he would have to pay $7,000 restitution. None of these figures was ever presented to be considered by or approved by the sentencing judge; the inference in the record is that the probation office filled in the amount without further judicial scrutiny until the events which are discussed below transpired.

Morgan, arrested on another charge several months subsequent to the June proceedings, never learned about the amount of restitution determined by the probation officer to be owed by him to the victim of the "receiving stolen goods" offence until after he was released from custody and had begun reporting to the probation office. At this time, the probation officer told Morgan he would have to pay $7,000 restitution during the remaining probation period. In order for him to satisfy this requirement, he would have had to make payments of $35.00 per week for the duration of his probation.

When this sum was demanded of him, Morgan went with a public lawyer and the probation officer to the sentencing judge's chambers to complain of the $7,000 figure. Though Judge Wofford remitted the $1,000 fine, he said that the matter of restitution was closed and that Morgan had the choice of paying it or going to jail. Subsequent to this hearing, Morgan never met a $35 payment, and the total amount of restitution which he paid up until the filing of this suit is $190. Morgan alleges that he cannot meet the payments ordered because of his indigency, but the record is inconclusive on the question of his actual inability to pay.

When Morgan felt that revocation of his probation was imminent, he obtained assistance of counsel from the American Civil Liberties Union. His new counsel immediately sought another hearing before the sentencing judge, who reiterated that the amount of restitution was not open to question and that Morgan would either have to pay or go to jail. The following statements by Judge Wofford appear from the record of this second hearing:

"Well, this money is going to have to be paid."

"By golly, he\'s just got to make an effort to pay it or go to jail. Which is it going to be?"

"Son, are you going to pay the money or are you going to jail? You want to pay the money . . . or go to jail and finish up the time and we\'ll mark it off?"

"I want you to know that I mean exactly what I\'m saying. No argument, no nothing. You\'re going to pay the money and you\'re going to come in and pay it pleasantly or you\'re going to jail."

There being no appeal from this hearing, and none being available under Goergia law, so far as has been called to our attention, Morgan filed suit under the Declaratory Judgment Act, 28 U.S. C.A. § 2201,² seeking a declaration that the statute requiring restitution was unconstitutional and requesting that defendants be enjoined from enforcing it. A three-judge court was requested in accordance with 28 U.S.C.A. § 2281³ to deal with the equal protection attack on the statute; the due process challenge to the manner in which the statute was applied was added to the complaint by amendment.

We deal first with the due process argument. Since the plaintiff claims that Section 27-2711 was applied to him without due process of law, the validity of the statute itself is not drawn into question,⁴ and the need for a three-judge panel to review this issue is obviated.

The district court's view that "the record does not indicate that the threat of incarceration was imminent" was clearly erroneous. Morgan, to comply with the restitution condition of probation, was ordered to pay $7,000. At two separate hearings, he was threatened by the sentencing judge. On both occasions, he was told that he could not challenge the amount of restitution, so that the only way the threat could have become more imminent would have been if Morgan had waited to be returned to jail. Requiring that he await actual incarceration would not merely be draconian; it would involve irreparable injury to the probationer, see, e.g., Sweeten v. Sneddon, D.Ct.D.Utah N.D., 324 F.Supp. 1094 (1971), and it would effectively nullify the Declaratory Judgment Act. See Wulp v. Corcoran, 454 F.2d 826, 832 (1st Cir. 1972).

Only if reasons of comity preclude this court from hearing the probationer's claim on the merits should we require that his potential federal court relief be limited to a habeas corpus petition. Abstention under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970), was never intended where there is no possible state proceeding through which appellant may raise his constitutional objections to a state proceeding which has already occurred. Younger itself held that, absent bad faith harassment or other extraordinary circumstances, where the issues sought to be resolved in federal court via an injunction may be adjudicated in a pending state court criminal prosecution, the federal court should abstain from issuing such an injunction. While the Fifth Circuit has applied Younger to situations where there is no pending state court prosecution, but only a threatened prosecution, see Thevis v. Seibels, 464 F.2d 613 (1972), we have never intimated that abstention is appropriate where there is no state court prosecution to be interfered with and where the plaintiff seeking relief in federal court has no alternative forum in which to raise his constitutional claim.

Morgan's claim that the judgment leaving the amount of restitution blank is void relates exclusively to a state criminal prosecution which has already occurred, not to a pending or threatened prosecution. It is only because the appellant was not informed of the amount of restitution until long after judgment was entered that the amount was not "adjudicated" long ago. Moreover, there is no alternative state procedure by which appellant may vindicate his due process allegation. No appeal was possible from the hearings at which Morgan was told that the amount was not open to question,⁵ and there is no indication that the amount of restitution could be raised at a subsequent probation revocation hearing, particularly since such a revocation hearing would be before the same judge who has refused twice already to reconsider the amount.

Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L.Ed.2d 556 (1971) is compelling precedent for the proposition that abstention is completely inappropriate here. In Fuentes, plaintiffs were granted declaratory and injunctive relief where they challenged "only the summary extra-judicial process of prejudgment seizure of property to which they had already been subjected." 407 U.S. 71, fn. 3, 92 S.Ct. 1989. Morgan similarly challenges a summary extra-judicial process; the procedure by which the probation office fills in the amount of restitution with no judicial scrutiny of or adversary challenge to, the amount of restitution claimed. While no "prejudgment seizure" takes place under Section 27-2711, appellant is under a purported order to pay...