Morial v. Judiciary Com'n of State of La., 77-1491

Citation565 F.2d 295
Decision Date13 December 1977
Docket NumberNo. 77-1491,77-1491
PartiesErnest N. MORIAL et al., Plaintiffs-Appellees, v. JUDICIARY COMMISSION OF the STATE OF LOUISIANA et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Donald Ensenat, Ronald Davis, Staff Atty., M. Truman Woodward, Jr., W. Richard House, Jr., New Orleans, La., for defendants-appellants.

R. James Kellogg, David Marcello, New Orleans, La., for amicus curiae.

Allan Ashman, Asst. Exec. Director, American Judicature Society, Chicago, Ill., for amicus curiae.

Trevor G. Bryan, William J. Jefferson, Sidney M. Bach, New Orleans, La., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

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

GOLDBERG, Circuit Judge:

In this appeal, we are asked to rule upon the constitutionality of a Louisiana statute and canon of judicial ethics which have the effect of requiring a judge to resign his seat on the bench in order to run for elective non-judicial office. The issue is one which implicates important interests in political participation and equally important ones in the impartial administration of justice. Upon full consideration of the very difficult and perplexing questions presented, we conclude that the challenged statute and canon are constitutional and, therefore, reverse the district court.

FACTS

Plaintiff Morial is a judge of the Court of Appeal, Fourth Circuit, State of Louisiana. Judge Morial was interested in becoming a non-party candidate for the office of the Mayor of New Orleans. By letter of October 16, 1976, he requested that the Supreme Court of Louisiana grant him a leave of absence, without pay, from his judicial duties in order that he might conduct a campaign for the mayoralty. Morial's request was made in view of Canon 7(A)(3) of the Louisiana Code of Judicial Ethics which provides:

A judge should resign his office when he becomes a candidate either in a party primary or in a general election for a non-judicial office, except that he may continue to hold his judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention, if he is otherwise permitted by law to do so. 1

The Louisiana Supreme Court unanimously denied Morial's request for a leave of absence. He then addressed a letter to that court's Committee on Judicial Ethics requesting an advisory opinion on the permissibility of engaging in activities to solicit support for his contemplated campaign. 2 The Committee was unanimously of the view that such activity was prohibited and that Judge Morial would be required to resign before announcing his candidacy.

Judge Morial, joined by thirteen citizen-voters who indicated their support for his candidacy, then brought suit in federal district court seeking a declaration that Canon 7(A)(3) was unconstitutional and enjoining its enforcement. Named as defendants were the Judiciary Commission of the State of Louisiana, its members, the Louisiana Supreme Court, and its members. The plaintiffs also sought a declaration that Louisiana R.S. 42:39, which prohibits any judge, save a justice of the peace, from qualifying for election to any non-judicial office unless he had resigned not less than twenty-four hours prior to the qualifying date, La.Rev.Stat.Ann. § 42:39 (Pocket Part 1977), was unconstitutional and prayed for an injunction against its enforcement. The Governor, Attorney General and Secretary of State of Louisiana in their individual and official capacities were named as defendants in view of their obligation to enforce the "resign-to-run" statute.

The district court granted the plaintiffs' prayer for relief. Judge Cassibry, in a scholarly and penetrating opinion, 438 F.Supp. 599, found that the canon and statute created a "chilling" and inhibitory effect upon the exercise of the plaintiffs' rights of freedom of speech and freedom of association guaranteed by the First Amendment of the United States Constitution. The court concluded that the prohibition of judicial candidacies for non-judicial offices was "not a necessary means, or in fact, even a reasonably necessary means, to effectuate" the admittedly compelling state interest in maintaining the integrity of the judiciary. On these premises, the district court held that the canon and statute violated the first amendment and the equal protection clause of the fourteenth. 3

JURISDICTION

Defendants urge that the district court should have dismissed this suit for lack of subject matter jurisdiction. They assert that any threat to the plaintiffs' interests was purely hypothetical and speculative when the complaint was filed and thus did not give rise to a justiciable case or controversy. We cannot agree. The court's power to adjudicate a case arising under 42 U.S.C. § 1983, pursuant to jurisdiction conferred by 28 U.S.C. § 1343(3) and 28 U.S.C. §§ 2201-2202, is not conditioned upon a plaintiff's actually proceeding to violate some assertedly unconstitutional state law prior to bringing suit in federal court. Pre-conduct challenges to the validity of laws burdening first amendment rights are among the essential bulwarks of a system of free expression. See Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Dombrowski v. Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). While courts have an interest in having concrete factual situations presented for judicial consideration, this interest would not be advanced by withholding anticipatory relief where, as here, the course of conduct in which the plaintiff plans to engage is clear to the court at the time the suit is filed. Indeed, in the case at bar, just as in Steffel, the plaintiff outlined his anticipated course of conduct with sufficient clarity to the state enforcement authorities to enable them to determine that his conduct would violate the state rule and expose him to sanctions. In such circumstances, the threat of punishment for engaging in protected activity cannot be characterized as "imaginary or speculative," cf. Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

Defendants also urge that principles of comity and federalism bar a federal court from entertaining a claim by a member of a state's judiciary regarding a question of judicial administration. Younger principles, even were we to assume them applicable to disciplinary proceedings against a judge, see generally, 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), have no application where state proceedings have not been initiated prior to substantial proceedings on the merits in federal court. Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Younger principles are not invoked by the mere fact that federal relief has an impact upon state governmental machinery; even in its quasi-criminal extensions, Younger dismissal is called for only in those circumstances where successful defense of a state enforcement proceeding, initiated before substantial federal proceedings on the merits had occurred, would fully vindicate the federal plaintiff's federal right. Younger, supra, 401 U.S. at 49, 91 S.Ct. 746; Steffel, supra, 415 U.S. at 460-61, 94 S.Ct. 1209; Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Huffman, supra, 420 U.S. at 603, 95 S.Ct. 1200; Juidice, supra, 430 U.S. at 334, 338, 97 S.Ct. at 1217, 1218. The Younger principles simply are not what the defendants would have them be: a broad, discretionary, device for the evasion of the responsibility of federal courts to protect federal rights from invasion by state officials.

I. THE FIRST AMENDMENT CLAIMS 4

In judging the constitutional validity of Louisiana's rule that judges resign their offices prior to becoming candidates for non-judicial office, this court must be guided by the approach adopted by the Supreme Court in U. S. Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) and Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the so-called "Hatch Act" cases. In these cases, the Court upheld against constitutional challenge broad restrictions upon the political activity of federal and state civil service employees. 413 U.S. at 556, 93 S.Ct. 2880; 413 U.S. at 616-17, 93 S.Ct. 2908. The Court specifically approved restrictions on the right of a federal civil servant to be "a partisan candidate for . . . an elective public office," Letter Carriers, supra, 413 U.S. at 556, 93 S.Ct. at 2886, and on the right of state civil servants to become "candidates for any paid public office . . . ," Broadrick, supra, 413 U.S. at 616-17, 93 S.Ct. at 2918. It is evident that the central issue in the resolution of the first amendment claims in the case at bar is the applicability of these conclusions to a sitting judge who intends to run for non-judicial office.

Correct extrapolation of the Letter Carriers and Broadrick decisions requires careful attention to the Court's analysis. Some lower courts have characterized these cases as employing a "balancing test." Alderman v. Philadelphia Housing Authority, 496 F.2d 164, 171 n. 45 (3rd Cir. 1974); Magill v. Lynch, No. 76-1532, 560 F.2d 22, at 27 (1st Cir. 1977). To the extent that the term "balancing" implies that the decision in Letter Carriers turned entirely on the relative importance the Court ascribed to the governmental interests and those of the employees, we find the word misleading. The analysis was actually more complex. As a first step the Court articulated the interests of the employees in being free of the challenged restriction. ...

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2 books & journal articles
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