Elizabeth Ann Duke v. The State of Texas

244 States, way.” camper Spinelli envi- and the v. Pickup United and its (1969). camp- 410, 417, aircraft and U.S. S.Ct. the downed

rons of dangerous marijuana or other er for Here the and dis- nature detail any paraphernalia in con- drugs, used “investigation” closures of to the —as any .fire- and for therewith nection origin incendiary fire, of the aircraft equipment used or use- arms or other to the nature of the disablement and ful in the distribution dissemina- aircraft, carrying to its fuel ca- drugs. dangerous tion of pacity, quantity fuel strongly tank —all indicate that the in- E. SCHWIN GEORGE /s/ vestigation George was official. E. Schwin” Judgment affirmed. Relying upon Aguilar 12 L.Ed.2d 723 U.S. S.Ct. sufficiency

(1964), appellants attack the ground upon the affidavit given entirely it information identity disclose belief and fails to the informant and the basis for a belief

that he was reliable. denying suppress In motion the Dis- al., Elizabeth Ann DUKE et Plaintiffs- trict Court stated: Appellees, apparent implied “I think it al., this affidavit information STATE OF et TEXAS -Appellants. Defendants came to this affiant from other law enforcement officers who en- No. were gaged investigation.” in an Appeals, United States Court of agree. Fifth We In United States v. Ventres- Circuit.

ca, 102, 111, April (1965), 13 L.Ed.2d 684 the Court stated: Rehearing Rehearing En Banc “ * ** June Denied upon reading the affidavit whole,

as a it becomes clear that detailed observations recounted fairly regarded affidavit cannot having significant been made part by persons other than full-time

Investigators of the Alcohol To- Tax

bacco Division of the Internal Revenue of fel- Service. Observations

low officers Government en-

gaged investigation in a common plainly a for a reliable basis warrant

applied one of their number.” Spinelli States, United (1969), L.Ed.2d lacking in the found the Court detail affidavit; but the same time the States, pointed Draper v. United 329, 3 L.Ed.2d 327 magistrate, as a “A (1959), case where detail, could when confronted with such reasonably infer that informant had

gained his in a reliable information holding case,

us, despite of 'that judgment below. reverse the fully out

The facts of ease set below, opinion F.Supp. help survey delineate the will but brief February precise us. issue On before Ninness, a student at North Herb Texas, Denton, University, Texas State began appellees, Eliza- discussions with Haylon, nei- beth Duke David Ann the ther of whom were students at Uni- ap- concerning versity, possibility of the rally pellees campus speaking on at a military protest activities United States February planned for Southeast Asia Martin, Atty. Gen. C. Crawford day, the North Tex- 1971. The same Atty. Fender, Tex., Asst. M. Howard passed resolu- Senate a State Student Mann, Tex., Ralph Gen., Austin, Asst. tion, designated Bill No. DEM Tex., Atty., defend- City Denton, for February 11, “support” rally. the On ants-appellants. Cabinet Ninness told the President’s Dallas, Tex., Demarest, Sylvia Mi- A. rally, “support” the Student Senate for Denton, Tex., Whitten, for chael J. plans appellees as out- and of to invite plaintiff s-appellees. speakers. then denied side The Cabinet speakers permit request the outside GOLDBERG, DYER and Before grounds rally on the the that Judges. SIMPSON, Circuit “sponsored” by the Student Senate organiza- recognized campus other Judge: SIMPSON, Circuit February the President of tion. On recurring and This involves the case DEM 46. the Student Senate vetoed complex problem circum narrow passed The Senate then a resolution may en day, stances in federal court “sponsoring” which a rally for the next ongoing join proceedings. judicial including inviting speakers outside injunction re The lower issued an speak rally. appellees at the existing straining the enforcement of an res- Senate President vetoed second injunctive state court order which for meeting, olution. At the Senate Univer- appellees speaking upon bade from Affairs, sity President Student Vice for entering upon campus North Tex Lindley, the various William discussed University. E. Duke v. regulations governing University the use D.Tex., 1971, F.Supp. 1218. Be campus presentation facilities and the proper ap disposition cause the of this speakers. Meanwhile, as of outside peal long turned, disput part, on the University officials events escalated ed, question never settled of whether seeking legal concerning were advice Rights Civil Act of Title U.S. ways demon- the scheduled control C., express Section constitutes Haylon evening, appellee stration. That Congressional exception to the broad that he stated a radio interview policy not en that federal courts shall rally day. speak next tended to join U.S.C., proceedings, Title morning delega- 17th, initially adju of the a On the we withheld appeared Supreme tion of students before the pending dication in this case requested Cabinet question. President’s Caréful review study opinion proceed demonstration be allowed to Court’s contrary. despite Foster, 1972, University Mitchum v. rules to the University to sus- constrains refused President February hearing Following on rules, pend but stated school Judge only March Scofield regulations applied and 26 and University granted permanent unsponsored presence “outside” Judge Haylon. Sco- Mr. Mrs. Duke and speakers campus, the discus- on guilty of con- found Mrs. Duke important field also students sion issues remaining rally tempt after for University then President alone. The restraining temporary or- service of the University of Secu- Chief authorized contempt Haylon guilty of Martin, injunc- der and found rity Police, to seek Tom entering campus dur- for courts. tive relief the state fight On a later date. snowball County At- the assistance With signed Judge Scofield March County, torney of Denton injunction. for the order prepared relief was Meanwhile, appellees Duke presented Judge Scofield, Dis- Robert sought the fed aid of Judge had to invoke the County. trict of Denton Follow- ap February Judge 1971 ing hearing, eral On parte courts. Sco- a brief ex pellees in the action restraining filed the instant temporary or- field issued a alleging that the issuance Hay- lower court prohibiting Mr. der Mrs. Duke and order court enforcement of the state entering upon campus of lon from the rights depriving of their was them University. Mean- North Texas State speech and Four begun noon, under the First while, rally free the had as complaint The teenth amendments. the scheduled. About 12:30 P.M. sher- sought relief, restraining Title under temporary federal or- iff served the alleged depri U.S.C., 1983, for upon upon Section der Mr. Mrs. Duke. Service rights of constitutional vations federal Haylon accomplished this was Texas; the of committed the State plaintiffs subsequently time. Both grant any tempo lower court did reading spoke rally, at the Mrs. Duke upon relief, rary process of and service papers which had crowd from defendants-appellants not com was following been served her. The Judge pleted had Scofield until after morning, Duke sheriff arrested Mrs. orally announced his decision to issue Haylon contempt and Mr. of court. permanent injunction. The lower temporary re- At the same time the hearings confer held a series straining Hay- order served on Mr. ences, May 26, and on issued opinion F.Supp. 1218. lon. and order.1 part 3g (4) Campus Security Regulation The order of lower court is source, 2919j, de- are and its as follows: unconstitutionally vague Having concluded that federal district to be clared power provide do have the and overbroad. courts relief, g. equitable proper (5) that Article 466a and other e. It is declared unconstitutionally unlawfully declaratory judgment, §§ U.S.C.A. Zwickler, applied plaintiffs supra in the circum- [Zwickler v. to the Koota, this case. stances of Mackell, (6) 444], L.Ed.2d and Samuels v. The enforcement State injunction permanent L.Ed.2d Texas Duke, (1971), deprivations to redress Judge 1971, by signed rights, March I deem on violation Section 1983 Scofield, following enjoined, appropriate is from and the sponses to be the re Robert plaintiffs’ pray after this to the various date. ers It is for relief:* so ORDERED. temporary (2) restraining this 26th ENTERED The SIGNED and order ' day resulting contempt May, and the conviction Wayne Justice of Mrs. to have been Wm. Duke declared /s/ constitutionally invalid. DISTRICT UNITED JUDGE STATES (3) university’s policies * concern- excluding (1). Again contention speakers are outside declared to violative of the First Fourteenth Amendments. warning injunction Supreme Mitch Court’s issued lower Foster, Judge supra. restraining um v. The lower court’s enforcement injunction, the bene action occurred also without and declared sec Scofield’s supervening own decision fit of our and North tions of the Texas Code Cir., McAuliffe, Regulations Palaio Texas un State erroneously ap F.2d concluded as constitutional unconstitutional plied plaintiffs-appellees. ap strict non-interference doc This “the Younger peal in from the federal court trine elucidated in and its com taken junction. panion cases limited

prosecutions F.Supp. at . . .” 327 this in Pa 1233. As Court made clear DISCUSSION however, McAuliffe, supra, laio v. “the The court ease issued principles purport under depend upon should not labels authority ed 42, U.S.C., of Title Section ‘criminal,’ ‘civil’ or rather should be but empowers 1983 which federal courts to governed by analysis competing vindicate federal constitutional on presents.” interests that each case Foster, a broad front. In Mitchum v. F.2d supra, held that Title iterate We 42, U.S.C., express Section 1983 is an principles equity, comity and federal exception Congressional policy, apply ism expressed anti-injunction statute, state “civil” as well “criminal” 28, U.S.C., Title fed ceedings, even where exercise grant eral courts shall not involved; rights First Amendment stay proceedings state a court. held, two of our sister Circuits have so 28, U.S.C., The fact that Title Section Wigoda, Cousins v. Cir. 463 F.2d injunctions 2283 does not bar federal is 603, application denied, stay for U. authority sued under the of Title U. S. 34 L.Ed.2d 15 S.C., only beginning, Section 1983 is Justice); (Rehnquist, Lynch Circuit inquiry not the end of our into the Snepp, Cir. F.2d In priety of federal court Younger, it Court made ongoing proceedings state such as oc thing clear “that normal to do when curred Mitchum court below. itself enjoin pend federal courts are asked ended with caveat effect of ing proceedings courts 42, U.S.C., Title Section 1983 Title injunctions.” issue such 401 U.S. at 28, U.S.C., Section not con 2283 should 91 S.Ct. at 27 L.Ed.2d at 676. This analysis: clude our interdiction federal interference concluding, ques “In so do not we judicial proceedings is based on qualify any way princi tion or comity concepts of re federalism ples comity, equity, and federalism spect op. functions, for cit. U. that must restrain a federal court S. at L.Ed.2d at at enjoin when asked to a state court In order to overcome it two proceeding. principles, These express pre-conditions be must shown prosecutions, context of state criminal may granted before relief a federal length were canvassed at Term in last plaintiff. moving First, party must Harris, 91 S. irrepara suffer demonstrate he will Ct. L.Ed.2d its com stays injury ble if the its panion at cases.” 92 S. moving hand, party and second the must Ct. at 32 L.Ed.2d at 718. demonstrate that he does have an Here, remedy correctly adequate while the lower at the state an law ticipated courts, op. express exception Mitchum’s cit. 401 at 91 S. decision, it acted Ct. at without benefit of at 675. 466a, determining authority Vernon’s Despite itself ap- pro- principles Ann.Penal Code of which are federalism prosecu- strictly plicable only vides : proceeded apply

tions, the court below pro- Art. 466a. Acts calculated to at hand: principles to the case those two damage injury property, duce or “Thus, plaintiffs Duke and person person; or life another abridge- subject to a are wholesale junctive relief. ment of their to freedom Every who, person assembly, speech, press, and associa- place time and and under circumstanc- tion, inherently constitutes con- which reasonably produce es calculated to tinuing irreparable injury. The dam- present clear and immediate age plaintiffs by suffered is com- danger physical threat or to the well- pounded by their current the fact that being, property another, or life of inability fully to communicate with knowingly willfully commits an audience, their North Texas intended act, urges or another to commit an students, results in State act, tending pro- so calculated and which, course, hin- reduced income damage injury proper- duce to the ders further exercise of whole ty, person person, or life of another range rights. Amendment First guilty pun- shall be of a misdemeanor suffering ‘gen- here are by ishable a fine of not more than damage.’ uine irretrievable $2,000, jail or a sentence of not more suffering they . And (2) years, than two both damage remedy adequate without jail fine and sentence. law, as evidenced dis- State trict court’s to consider refusal See. 2. all cases where such ac- issues, constitutional until the course threatened, tions are judicial processes of the State’s have through County or District Attor- F.Supp. run to conclusion.” ney, may as an relief additional sanction all who are threatening so to commit such unlaw- in Was lower court correct or act acts. Where such actions Younger principles its ful in, on, against any are threatened or the facts before it? address that We agency, thereof, property question. or Attorney may institute such General issuing restraining temporary In its proceedings. pro- injunctive against Haylon, All such order2 Duke and proceeding ceedings state trial court in of the under shall be the name Temporary University; 2. The state district court Re- of North Texas State straining provided part: (E) Urging persons Order in other commit “ * * * produce ORDERED, intending it is therefore act calculated jury damage property, person, ADJUDGED and DECREED that de- or or they hereby insighting people fendants be and are re- life of other [sic] ' any any person participate strained from: in riot or “(A) Coming any proper- disturbance; (F) Participating onto of the in civil ty insighting violence, owned and controlled North Texas mob riot- [sic] University per- coming ing urging State and from into other disturbance any buildings participate of the or facilities on the in vio- sons to and incite ' campus rioting disturbance; lence, of North Texas State Univer- and civil sity; (B) Obstructing use, enjoy- (G) Disrupting the normal educational ment, ingress egress activity or of the facilities and social of North Texas State buildings urging persons of North Texas State or other University; (C) Committing any intending calculated assault commit act injuries any upon persons any disrupt of the and so- the normal educational any property facilities or on of North Texas of North cial activities University; Damag- (D) University.” Texas State injuring any property whatsoever guided by propriety State of Texas and the with the of federal be interven- Georgia injunction proceedings. injunctive proceeding tion in a rules of other technique required. No bond shall which was a civil for en- forcing Georgia’s prohibition criminal Leg., p. Acts 60th ch. against the distribution of obscene ma- emerg. eff. June 1967.3 affirming terials. In of feder- the denial added) (Emphasis “ al relief this Court stated . . . Thus, though even the state court issued anticipatory when federal relief will process normally which is denominated significantly affect a state’s enforce- “civil,” granting in that court was fact by whatever means —of its crimi- ment — remedy legislature which the of Texas laws, nal then such relief is barred provided part comprehensive had strong policy noninterference, un- scheme the enforcement of the Texas plaintiff heavy less the can meet Penal Code. The fact the Texas proof Younger imposes.” burden of proceeding State court was under a stat- 466 F.2d at 1233. ute which authorizes relief issuing injunction4 aid of the enforcement of the state’s Haylon, Duke and to enforce Ar- brings squarely laws this ease 2919j, ticle Vernon’s teachings Ann.Civ.Stat. within the of this Court regulations McAuliffe, supra. Palaio Texas5 and the Palaio dealt of North 4. The 3. Article . bad faith and harassment district without a constitute tutional Supreme cumstance here that with a might court). Thus, its face in of Texas was Texas State joined from, on ings they Haylon trolled North Texas State and from DECREED that the Defendants David tional finding no desist from should “It opinion ruling by questions and “ * * * any emergency F.Supp permanent injunction is or facilities on the relative are each constitute flagrantly question, by issue, 466a, ORDERED, statute, of the and that a irreparable injury. justifying that whereas constitutional Locke could be raised on coming preliminary showing the and the Court provided of them shall and that each coming upheld Betty the same is Vernon’s Ann.Penal there can be no thereto; lower property existed to necessitate a hereby permanently Court the Court made no rul- into (three Vance, S.D.Tex.1969, situation Ann federal intervention onto or ADJUDGED extraordinary patently on any constitutional on campus and the Court for the owned part: Duke, be, judge hereby issued, any of the state necessary of the build- being appeal L.Ed.2d at University which the injunction suggestion remaining intimated unconsti- of North constitu- purpose district dealing of the Code con- and and and cir- en- 1, 1971, provided p. 3319, 'education of this state or to ly the state is court or city shrubs, grasses stitutions of of higher education. of ished deface Act or of the state institutions of grounds shall cation of this state. “Section 8. The violates governing mulgated “Section 4. It shall be unlawful for any person with criminal laws of the to be “Section 2. areas under the control and any purpose “Section (sic), ^[*] vested with * addressing higher any control Repealed university regulations by 2919j, ch. any monuments, memorials, located of any justice county full force and of the institutions of any a fine of not under the * * * * ^[*] board of education of any conviction thereof be of the rules or * * * Vernon’s of the higher trespass upon student assemblies or for All of the without all is each of the state institutions jurisdiction art. where judge or jurisdiction Acts ^[*] authority of the pertinent part: buildings, statutes, provisions education of this regulation flowers on the effect Any person more hereby separate- Ann.Civ.Stat. Sec. state institution first property of a this state ^[*] peace general the of state higher jurisdiction than of this Act damage within the . 62nd municipal necessary complying eff. declared grounds . of this of higher under trees, $200. ^[*] Sept. Leg., pun- edu- who pro- any .” any or University, jurisdiction trial the the state invoked is ex- Texas State authority ; applies may the hausted and this rule alike have exceeded 466a, Taylor by both civil Article Vernon’s and criminal cases.” conferred U.S.) Taintor, 1873, (83 this does of But Ann.Penal Code Texas. 16 Wall. princi- 366, 370, the L.Ed. our conclusion alter ples required plaintiffs-ap- the of Palaio integral principle part This is the of pellees pre-conditions meet here to the principles of federalism enunciated being to in- before entitled of Younger. Its here dictates court. voke the aid of a federal acquired prior that since the state court jurisdiction First, 2919j, Ann. law Vernon’s enforce state criminal injunctive Texas, by remedy, su- 2, note of the Civ.Stat. of the nature jurisdiction pra, penalty for state court’s contains a criminal should be jurisdiction entire as well viewed of the violation of the statute time that regula- any assumed. of rule was Since the initial and con- the violation tinuing validly promulgated jurisdiction the stat- under tion of the state through injunctive injunctive of ute, thus enforcement enforce relief regulations Texas, and rules and criminal laws of that statute the State of Palaio, promulgated requires constitutes this thereunder also to determine criminal enforcement of state whether or not here overcame heavy imposed upon law. burdens them by Younger irreparable importance, Second, paramount —demonstrated and of injury inadequate remedy and an at law already ac- the state district court had Harris, courts. controversy jurisdiction quired over supra, 401 U.S. at 91 S.Ct. at parties here issuance between of. 27 L.Ed.2d at 675. preliminary the au- under its 466a, thority Ann. of Article Vernon’s in Younger, As used the con any applica- Penal of before Code cept “irreparable injury” in the con district tion made to the federal text of federal intervention in state our rubric court. It is time-tested ceedings First, term is a of art. federalism that: possibility that mere the state court or might a court of a state court and der “Where tend “chill” First Amend juris- may States each take ment United is not itself sufficient gets diction, intervention, first justify the tribunal which Id. 52- oth- it to the it holds exclusion of 679- Second, duty fully Duke and re er, performed were until Notwithstanding "Section 10. cases to hear determine provisions Act, involving all officers violations where hereof governing punishment commissioned boards fine of does not exceed a respective institutions $200. may higher governing education this state “Section 9. boards empowered by high- respective re authorized institutions regu repre- spective board to rules and enforce er education or their authorized promulgated authority lations the Board. shall be vested with sentatives Nothing persons having limit or no herein intended to to allow to refuse authority legitimate restrict each institution business to enter appropriate promulgate jurisdic- property and enforce under the control orderly regulations higher any rules and state tion of institution of the. in carrying eject any conduct of institution of this state and to education objectives purposes person property or the out its undesirable from said jurisdiction relating right separate peaceably of their refusal leave per given upon request. Authority the conduct of students to re- its any person upon quire sonnel.” of identification property institu- of the state of higher education. tions of con- only their federal quired assert of the state court order. the enforcement single rights Thus, in state intruded it- a the federal court here stitutional brought litigation apparent processes in junction proceeding, self into state facially appellate good faith, adequate constitu- a to enforce time at a when remedy em- courts. As in the state tional state statute. was available plaintiff’s disrup- improper phasizes, to the as “the threat Such intrusion was one federally protected must fed- be between tive to the delicate balance implicit defense his eliminated tradi- that cannot be eral and state courts 47, against single prosecution.” concepts comity Id. at federalism. a tional representative part- L.Ed.2d at 676-677. As of the dominant at S.Ct. necessary interplay Finally, of First in the area ner in the between even rights, special sovereigns, circum- federal courts must Amendment the two especially harass- faith and to this balance stances such bad sensitive preservation. those ment —circumstances and assiduous its Pfister, 1965, disregarded goals present v. in this in Dombrowski These were 14 L.Ed.2d 85 S.Ct. case. federal present a before 22 —must be no below made ongoing state may in an intervene orderly effort to utilize state court Harris, supra, proceeding. v. sys cedures resort to the federal before 753-754, 49-51, 401 U.S. at tem. The trial refusal state v. cf. Cameron Haylon’s court to fed consider Duke and Johnson, claims, eral constitutional note su see no There is show- 20 L.Ed.2d 182. pra, duty pursue did not alter ing faith, harass- on this record of bad state remedies. Mere errors or mistakes ment, special circumstances other special the state trial court are justify intervention federal which would justify in circumstances which federal in this case. tervention, Lynch Snepp, supra, v. cf. 472 F.2d at courts have adequacy 775-776. Other turn then to the We pursue ap indicated that failure to Haylon’s remedies Duke and pellate Texas, permanent remedies is a factor to be consid courts Texas. refusing order, ered federal appealable a final ongoing proceeding, Lynch civil Ann.Civ.Stat. Vernon’s 775-776; Snepp, supra, v. 472 F.2d at see 31 326-327. What Tex.Jur.2d may Wigoda, supra, impediment cf. Cousins 463 F.2d ever have been the party temporary may appeal re A not invoke the of the initial court, alleging straining Duke and aid of a federal that his order issued Haylon,6 inadequate, district court had is state remedies are without the state having appealable sufficiency in sued first tested a final having junction federal those two months remedies found them before restraining wanting.7 court here issued order to be between Texas maintains a distinction do not have here a case where federal We temporary appealability plaintiffs, prior bringing restrain their federal pre appealability orderly ing action, order and the fact exhausted liminary injunction procedures appellate found similar state court trial and system, compare the federal 31 Tex.Jur. have been refused consideration Nor, 325-326, 340, with Title their federal 2d U.S.C. constitutional claims. Wright, 1292(a)(1). further of course we have a Sec. See do case where hav Edition, voluntarily Courts, Federal Second Law of submitted consti p. 458; Grady, courts, disappoint claims Smith tutional to state 181; litigants relitigate Du 411 F.2d Connell v. ed seek to the constitu Cir. Products, 1957, 240 F.2d lien tional issue in a federal Steel Cir. court. See Brown Chastain, 416 F.2d Cir. cert. denied 976, 25 L.Ed.2d 134. the Duke and their situation assert Stripped to its essentials through invoked claims final decision Texas below the here that is dis- courts and thereafter review in jurisdiction States to seek of a United Supreme judgment of a the United States Court under to review trict court Fidelity provisions 28, U.S.C., v. of Title Rooker Sec- court. trial state 413, tion 1257. court Co., 1923, The district erred 263 U.S. Trust relegating 362, Supreme them to this Cf. 149, Court course. 68 L.Ed. practice Atlantic Line R.R. expressly disapproved Coast Co. v. Brother- Engineers, 1970, hood of Locomotive 281, 296, 1739, 1748, 26 L. questions the constitutional “ —If Fink, 246; Ed.2d Warriner v. actually arose stated in bill Cir. 307 F.2d duty province cause, it was the them; to decide courts right decision, or whether their CONCLUSION jurisdiction. wrong, exercise was an required by principles equi- As wrong, did that decision was If the ty, comity, and federalism enunciated void, judgment but not make Harris, supra, applied by mod merely open or left to reversal it injunctions this Court aid timely appropriate ification state criminal statutes in Palaio v. Me- proceeding. un appellate Unless Auliffe, supra, the court below should modified, it would til or reversed so suit, adjudi entertained this but be effective and conclusive Peirsol, 1 Pet. cation. Elliott v. should have then allowed the liti- active 164; Thompson Tol 7 L.Ed. gation progress orderly fashion 381; mie, 157, 169, L.Ed. 2 Pet. through the state courts. The district States, 10 v. Bank of United Voorhees court remand directed to vacate 490; 449, 474, Pet. 9 L.Ed. Cornett decree and dismiss Williams, L.Ed. Wall. complaint. Harding, 254; parte Ex Reversed and remanded. L.Ed. Under legislation Congress, no court this States other than United Judge GOLDBERG, (specially Circuit proceeding to court could entertain a concurring): modify judgment or for reverse character. errors Judicial I concur for result the follow Code, September as amended § ing reasons. al Plaintiffs have neither do 726. To c. Stat. § leged proven nor that available state appellate

so an exercise would inadequate cedures were to vindicate jurisdiction. pos jurisdiction rights their federal constitutional and to by the District Courts is strict sessed prevent suffering those from ir original.” ly reparable seeking harm. Instead court review of the state court’s 44 S.Ct. at injunction,1 alleging without way open for was L.Ed. at 365. extraordinary appli- relief. No seek of the State on behalf 1. The briefs filed in the state trial problem made cation was as follows: state the of Texas any alteration, try clarifi- obtain com- made ever “No effort was ruling. expanded definitive plainants cation modification to seek system. . . . . " within the state review again significant “It note appeal taken. No No complainants point counsel Civil Court of to the Texas made anything in to continue made no effort Appeals Texas or to the 254 inadequate Indeed, Mitch have been would otherwise occur.4 state review would Younger harm, plaintiffs Foster, um prevent irreparable v. decided after v. Harris, recognized out, expressly did, fact, majority points the exis in as the remedy.5 tence of such a district court what in the federal obtain appellate of the state review amounts Had that these shown majori not read the court’s action. I do procedures were inade review here, ty’s opinion opinion in nor the Pa safeguard quate rights, their because opinions McAuliffe,2 nor even laio v. delay reason,6 or for other I be Younger cases,3 pro Harris as in v. clearly lieve federal relief would against hibiting injunctive relief federal case, been warranted on the facts judicial proceedings there is where majority saying I do not read the procedures showing of state that use Younger otherwise. The v. Harris sex inadequate protect showing federal requires

will that tet at least some procedures rights, i.e., irreparable fol if available state harm where remedies, protect Many people’s federal further Texas courts. —to legal equitable, people avail- both were still action from unconstitutional court, in the Texas able the trial Court that state law ‘whether under color of (an ap- Appeals of pellate intermediate Civil judi- executive, legislative or action be equitable with substantial 339, Virginia, parte Ex 100 U.S. cial.’ powers), and in the Texas carrying 676, 346, out 25 L.Ed. 679. (the court of last resort within Court plainly purpose, Congress author- that having equitable the state and broad injunc- the federal courts to issue ized powers).” actions, expressly 1983 au- § tions equity’ thorizing a 1972, ‘suit one 2. F.2d Palaio 5 466 1230. The Cir. long ques distinguished And this Court means of redress. and did not decision recognized ago Thompson, 1971, federal tion Hobbs v. 5 448 Cir. against proceeding a state court 456, relief that “exhaus F.2d we stated where judicial be essential can some circumstances tion of state prerequisite remedies prevent great, immediate, and ir- federal to the invocation of person’s reparable loss of a constitution- .” relief under section 1983 . . 448 ” rights. question . . . al F.2d at 461. instant 2162, 242, at L. 92 S.Ct. 32 407 U.S. at state remedies should is not whether case Ed.2d at 717. as much as it have been exhausted a federal whether Harris, supra v. The Court necessary proceedings language 3, reproduced in Dom- note rights. tect federal 8, sug- Pfister, note browski v. infra obtaining appellate delay gests companion v. cases were 3. The six may disposition 746, “extra- 37, be a sufficient Harris, 1971, 401 91 S.Ct. U.S. justifying ordinary Mackell, 669; circumstance” 401 Samuels v. L.Ed.2d 27 prevent irreparable 688; harm: L.Ed.2d 91 27 S.Ct. U.S. complaint allegations in this “But Boyle Landry, 91 S.Ct. 401 U.S. depict defense of which a situation Ledesma, 696; Perez v. L.Ed.2d 27 prosecution will the State’s L.Ed.2d 27 91 S.Ct. 401 U.S. adequate of constitu- vindication assure Dyson Stein, 701; U.S. They suggest rights. that a sub- tional 781; Byrne S.Ct. impairment free- loss of or stantial Karalexis, appel- expression will occur if doms L.Ed.2d 792. the state court’s dis- lants must await Injunctions position generally Fiss, at in this 27-74. review and ultimate See determination. adverse true, clearly allegations, if show These Holding § that 42 U.S.C. L.Ed.2d 705. irreparable injury.” excep- “expressly authorized 1983 is 753, quot- 48-49, Anti-Injunction Act, U.S. at U. tion” to the Pfister, stated: the Court S.C. Dombrowski v. § from very purpose 485-486, also § “The 85 S.Ct. 1116. See Sed- interpose ler, between the federal courts note infra guardians people, States and pre not be irreparable harm will lowed, showing made

vented. No INC., corpo- ASSOCIATES, a BAUM ration, Appellee, here.7 injunc- that I no doubt have COMPANY, SOCIETY BRAND HAT “chilling beyond ef- tion went far corporation, Appellant. a Pfister8 present in Dombrowski v. fect” ASSOCIATES, INC., corpo- BAUM a expressional Amendment First and that ration, Appellant, unquestionably frozen freedoms were Note, 170 50 L.Rev. here. Texas See COMPANY, BRAND SOCIETY HAT fed- a (1971). I have no also doubt corporation, Appellee. a appropri- remedy eral would have been Nos. a thaw shown that ate had in state been could not have obtained Appeals, Court of United States pre- adequately have that would Eighth Circuit. irreparable First Amendment vented 13,1973. Submitted March occurring. If result harm from April 19, Decided 1973. obtain, February will sextet oppressive orchestra of become Rehearing May 11, Denied 1973. proportions.9 contin- The federal forum must, rightful ues, play role in as it constitutional vindication of federal

rights. still The First Amendment extraordinary audible,10 but before the remedy in state invoked, proceedings may there showing

must be federal ac- safeguard necessary tion is those rights. showing Because such is total- ly lacking here, I concur in this reversal. (1972). alleged Beyond, 7. Plaintiffs have not or shown that 50 Texas L.Rev. 1324 they any delay Compare Shevin, would encounter Intrusion whatso- Federal obtaining Proceedings, L. ever Utah of the state State 1972 review injunction. Gilbert, Unan court’s with Questions Rev. February Sextet, 1972 swered 85 14 L. Comment, Ex also Utah L.Rev. See Ed.2d 22. Statute, Anti-Injunction ceptions already regard Comment, ; Much has (1972) been written 21 Am.U.L.Rev. 395 potential impact In on Limitations Federal Courts: New See, Sedler, g., v. Harris junctive Relief, cases. e. Dom 416 U.Fla.L.Rev. 23 Younger: Loyola browski (1971) ; Note, Wake of The L.Rev. 207 18 Within, Comment, View from Without (1971) ; 1972 Anti-In The Federal 1; Note, Statute, Wisc.L.Rev. L. junction 40 Cincinnati L.Rev. Rights 8 Forest Wake (1971) ; Comment, Rev. 613 In (1971) ; Comment, Federal The Civil 107 junctive Anti-Injunction Relief: What Remains after Act of versus The 1871 Harris?, Ky.L.J. Forum, 216 60 The Need a Federal Statute: (1971) ; Comment, Injunctive Federal Wash.U.L.Q. 625. Against Proceedings: Relief State Court Schoonover, Kennedy generally & 10. See Young Younger, From La.L.Rev. Declaratory Injunctive Relief Federal & ; (1972) Note, L.Rev. U.Miami Burger Court, 26 SW.L.J. Under the ; Comment, (1971) 17 N.Y.L.F. Campus: Note, Equity (1972) ; on (1971) ; Note, 1972 Wisc.L.Rev. 257. Injunctive Regulation Limits of Maraist, Injunctive Compare Re Federal Protest, 993- L.J. Yale Proceedings: Against lief State Court Note, See, (1971). Collateral also Significance Dombrowski, 48 Restraining Injunctions First Attack Maraist, (1970), Texas L.Rev. 535 with Activity, 45 So.Cal.L.Rev. Amendment Federal Proceedings: Intervention Criminal (1972). Younger, Dombrowski,

Case Details

Case Name: Elizabeth Ann Duke v. The State of Texas

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 19, 1973

Citation: 477 F.2d 244

Docket Number: 71-2845

Court Abbreviation: 5th Cir.