Porter v. Kimzey, Civ. A. No. 1291.

• Citation: 309 F. Supp. 993
• Decision Date: 06 February 1970
• Docket Number: Civ. A. No. 1291.
• Parties: Harold PORTER, Plaintiff, v. Herbert B. KIMZEY, District Attorney Mountain Circuit, Grady F. Crocker, Sheriff of Habersham County, Clyde W. Simmons, R. L. Hansard, Edward C. Taylor, Billy S. Langley, Sr., and E. B. Caldwell.
• Court: U.S. District Court — Northern District of Georgia

309 F. Supp. 993

Harold PORTER, Plaintiff, v. Herbert B. KIMZEY, District Attorney Mountain Circuit, Grady F. Crocker, Sheriff of Habersham County, Clyde W. Simmons, R. L. Hansard, Edward C. Taylor, Billy S. Langley, Sr., and E. B. Caldwell.

Civ. A. No. 1291.

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

February 6, 1970.

Albert M. Horn, Orinda D. Evans, Atlanta, Ga., for plaintiff.

Robert B. Thompson, Weymon H. Forrester, Gainesville, Ga., Courtney Wilder Stanton, Atlanta, Ga., for defendants.

Before MORGAN, Circuit Judge, and SMITH and HENDERSON, District Judges.

PER CURIAM.

The three-judge feature of this case involves a facial attack on the constitutionality of a Georgia statute, under which the plaintiff was arrested following public criticism of certain personnel at a unit of the Georgia Department of Corrections where he had been employed as a guard. He seeks to enjoin any indictment or prosecution under the arrest warrant issued on the complaint of private individuals named in his statement charging him with a violation of Georiga Code § 26-2804, "Criminal defamation", which provides:

"A person commits criminal defamation when, without privilege to do so and with intent to defame another, living or dead, he communicates false matter which tends to blacken the memory of any one who is dead or which exposes one who is alive to hatred, contempt, or ridicule, and which tends to provoke a breach of the peace. A person convicted of criminal defamation shall be punished as for a misdemeanor."

The complaints of plaintiff are two-fold; namely that the provisions of the section are (1) overly broad, vague and ambiguous and (2) that they represent a prohibited abridgment of the right of free speech under the First Amendment.

This case represents another in an ever increasing series of actions wherein the jurisdiction of three-judge federal courts is invoked to test the validity of state statutes and to enjoin pending state prosecutions thereunder. The threshold question is whether it constitutes one of the "rare exceptions" authorizing such intervention contrary to the provisions of 28 U.S.C.A. § 2283, the anti-injunction statute.

Only a few years ago, such a procedure was unheard of as any accused had ample opportunity to vindicate his constitutional rights by way of defense in the state proceedings and comity considerations led Congress and the courts to avoid interference with the exhaustion of all state remedies. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1942); Chaffee v. Johnson, 352 F.2d 514 (5th Cir. 1965, affirming 229 F.Supp. 445). The jurisdictional source of this action is claimed to be founded on the now celebrated case of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), which authorizes the issuance of injunctive relief under certain circumstances where there is a facial attack on a state statute the enforcement of which arguably chills a First Amendment right. From this fountainhead has sprung a torrent of litigation attacking state statutes and municipal ordinances not only on First Amendment grounds, but on any other conceivable constitutional grounds, and seeking to enjoin state prosecutions on such basis.

In wrestling with Dombrowski, the scope of which is still somewhat in doubt, it has been concluded that, even in the case of an alleged bad faith prosecution by state officials directed against the public and political exercise of First Amendment rights, the decision does not permit wholesale attacks on any state statute or state prosecution.¹ First and foremost, the prosecution or threat itself must be founded on a statute which on its face, at least arguably, affects First Amendment rights. E. g., Carmichael v. Allen, 267 F.Supp. 985 (N.D.Ga.1967) (Three-judge). There must be a "nexus" between the right sought to be protected and the right ostensibly restricted by the statute. Compare the requisites of standing set out in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). To cite an extreme example, Dombrowski could not be used to enjoin a state prosecution for the offense of rape, murder, or the like, the ingredients of which are unconnected with First Amendment rights, on the grounds that the statute was vague or on procedural matters or that it is being used to chill First Amendment rights. See Bokulich v. Jury Commissioners of Green County, 394 U.S. 97, 89 S.Ct. 767, 22 L.Ed.2d 109 (1969); Dameron v. Harson, 364 F.2d 991 (5th Cir. 1966), affirming 255 F.Supp. 533; Cato v. State of Georgia, 302 F.Supp. 1143 (N. D.Ga. June, 1969) (Three-judge). Thus, the door is not open to all who would test the validity of state statutes or conduct a federally supervised pre-trial of a state prosecution by the simple expedient of alleging that the prosecution somehow affects First Amendment rights. The constitutionality of state statutes is properly a question for the state courts initially.

Even for First Amendment rights, Dombrowski-oriented proceedings are clearly limited to those instances wherein (a) "statutes are justifiably attacked on their face as abridging free expression" or "there is bad faith harassment by state officials with no intention of pressing the charges or with no expectation of obtaining convictions, knowing that the conduct did not violate the statute." Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1967). (There is no evidence of the latter here.)

To these limitations must also be added the need to vindicate some transcendent public right affecting masses of the populace in the exercise of their First Amendment rights. Thus, "Federal interference with a State's good-faith administration of its criminal laws `is peculiarly inconsistent with our federal framework' and a showing of `special circumstances' beyond the injury incidental to every proceeding brought lawfully and in good faith is requisite to a finding of irreparable injury sufficient to justify the extraordinary remedy of an injunction." Cameron v. Johnson, supra at 618, 88 S.Ct. at 1339; Machesky v. Bizzell, 5 Cir., 414 F.2d 283 (1969). E. g., Carter v. Gautier, 305 F.Supp. 1098 (No. 2422, Sept., 1969, M.D.Ga.) (Three-judge); Gable v. Jenkins, 309 F.Supp. 998 (Oct., 1969, N.D.Ga.) (Three-judge). Thus, the successful applications of Dombrowski have occurred when there has been a chilling effect on the exercise of First Amendment rights, principally in the political and racial arena, by organized groups or representatives thereof and the state action affects the rights of many and not a single or a few accuseds. E. g., Cameron v Johnson, supra; Carmichael v. Allen, supra; Landry v. Daley, 280 F.Supp. 939 (N.D.Ill.1968), appeal dismissed 393 U.S. 220, 89 S.Ct. 455, 21 L.Ed.2d 392 (1968) (injunction issued separately. 288 F. Supp. 200, 204 n. 14). Even then, the power may be sparingly exercised. See Baines v. City of Danville, 337 F.2d 579 (4th Cir. 1964).

Tested by the above, the instant action must fail on two counts. First, it involves only a single individual who has been arrested and accused under the statute. The prosecution affects him and him alone and not a group seeking to exercise some broad right of freedom of speech. Obviously, the plaintiff does not represent a class under Rule 23(a). There is no showing that the class is numerous or that the claims are typical or any of the other requisites thereunder. See generally Wilson v. Kelley, 294 F. Supp. 1005 at 1010 (II) (N.D.Ga.1968) (Three-judge). While the court recognizes the interest of the public in all the operations of government and encourages discussion of the same, this is not such a "public right" or such "special circumstances" as are envisioned by Dombrowski and Cameron. Secondly, the arrest here is based upon a private warrant taken out by one citizen of the state against another. It is not founded on an organized effort at law enforcement or harassment by public officials. As such, the accused's rights are amply safeguarded by Grand Jury action, by his ability to raise his constitutional issues in the state court, and by the many defenses available on the merits. We do not think such a private disagreement warrants intervention of the power of the federal courts. The strains on federal-state relationships are already many and the burden on the federal courts already heavy.² Suits for malicious prosecution provide an ample vehicle for the vindication of such private rights in the event of any abuse.

For the reasons stated, it is therefore concluded that the action does not lie and the motions to dismiss insofar as they relate to the three-judge issue are granted.³

It is so ordered.

1 This does not mean that the constitutionality of state...