Jerry Parker, Jr. v. Kenneth Turner

al., PARKER, Jerry et Jr.

Plaintiffs-Appellants, al., et

Kenneth TURNER

Defendants-Appellees.

No. 78-1063.

United Appeals, States Court of

Sixth Circuit.

Argued Feb. July

Decided Rehearing

Rehearing and En Banc 19,1980. Sept.

Denied

2

FACTS Thе named filed this action 28,1977. October They sought represent to indigent class of fathers who were child pay alimony state court orders to and The support. claimed that and juvenile judges Memphis court denied Shelby County, routinely Tennessee rights basic due in civil to fathers who support Specifi- their payments.1 behind in cally, plaintiffs alleged juvenile that the denied policy, as a matter of judges, counsel, right to them fathers their denied Memphis Thompson, Albert R. Area Le- to right confront and cross-examine Jr., Services, Inc., McKenney, Edward gal J. witnesses, to right and denied them the Blair, Hanover, Walsh, Thomas Jalenak & be- in their testify and witnesses Daniel, Tenn., plaintiffs- Memphis, M. juve- Accоrding plaintiffs, half. to the appellants. rou- Memphis area nile Smith, Tenn., Memphis, D. Jack for de- money support who owe tinely jail fathers fendants-appellees. oppor- giving the fathers even means, present a defense. This tunity to KEITH, MARTIN, Before and MERRITT fathers, have many claim the of them Judges. Circuit will even jailed been and continue to be though they are afford destitute and cannot KEITH, Judge. Circuit support to payments. make the interesting presents questions This case sought in- The and concerning the abstention first out- doctrine junctive juvenile relief to ensure that v. lined Harris, 746, process. basic due 37, 27 followed 401 91 ev- plaintiffs also a declaration that judge felt 664 The distriсt right to Younger principles applied here and dis- cited for had a ery father afford attorney if he could not complaint. appointed missed the af- firm. one.2 J., 1107, Although non-support (1979) (Thornton, con- is a misdemeanor P.2d Tennessee, 39-202-06, curring). T.C.A. case con- §§ cerns civil used to en- However, courts are divided on the issue alimony support force child orders. ap- indigent spouse right to has a whether an pointed counsel right appointed to in civil alimony. counsel con pay support to for failure tempt proceedings is Courts have Bradshaw, unsettled. (9th 483 Cir. Henkel v. F.2d 1386 uniformly recognized right appointed to counsel); Wright, 1973) (dicta) (right Jolly to v. person counsеl in situations where a faces im right 83, (1980) (no to 300 135 N.C. 265 S.E.2d prisonment testify refusing Brotzman, before a counsel); to Brotzman v. 91 Wis.2d grand jury refusing comply (right with an (Wis.App.1979) to Internal to N.W.2d 600 283 Wilson, counsel); Re venue summons. United States v. And Ex Parte 698 559 S.W.2d erson, 1977); counsel); 553 (Tex.Civ.App.1977) (dicta) (right F.2d 1154 In re Di Cir. Bella, 1975); Sword, (2d 959 re 88 Sword 399 Mich. 249 N.W.2d v. Calhoun, Kilgo, 1973); right counsel); (1976) (no United In re Kung Kang, (1976) (no States v. Sun F.2d 1368 Ohio St.2d N.E.2d 665 1972); Johnson, counsel); Tetro, People v. 407 Mich. Tetro v. Wash.2d Lucero, (right counsel); (1979); People (1975) N.W.2d 632 Otton 544 P.2d Colo., Roll, (1978); Zaborac, (Alas.1974) (right 584 P.2d 1208 525 P.2d 537 State Duval, City counsel); Md. 298 A.2d 867 See also Duval v. N.H. counsel, (no right Bailey, Or.App. Klamath but Falls v. A.2d 1 the com- Court has yet court dismissed

The district extended “not stated that it was The court plaint. to all situations where a civil claims.” How- plaintiffs’ unsympathetic ceeding is stаte court. How- adjudi- ever, thought that for it to the court ever, applied Younger the Court has in vari- “significant suit would result cate the ous civil contexts. in Huffman v. interference with unacceptable Pursue, Ltd., might which include judicial process,” state (1975), L.Ed.2d 482 the Court refused to juvenile of the state ongoing supervision in interfere with a civil nuisance action the abstention relied on court. state court in which the state Harris, 37, 401 v. U.S. Younger doctrine of Significantly, close down a movie theatre. (1971), 746, 664 and its 91 27 L.Ed.2d S.Ct. civil, although proceeding, state question appeal on is wheth- progeny. quasi-criminal in nature and the state was a applies Younger properly er the doctrine addition, party to it. In the theatre owners here. state appealed had not the adverse result, action, a new federal but had filed I. collaterally attack the effectively trying proposi- Harris advanced the Younger v. judgment. extraordinary circumstanc- tion that absent Although unique, Huffman did factually es, enjoin pending cannot a federal court to civil Younger principles restraint extend state court.3 This doc- ‍‌‌‌‌‌​‌​​‌​​​​​‌​​‌​‌​​‌​‌‌‌‌​​​‌​​​​​​‌​‌​‌​‌​‌‍criminal trial in a important in state concerns cases judicial trine is on considerations based Sims, Thus, in Moore v. 442 present. proper and state-federal relations.4 economy 2371, 994 415, 60 L.Ed.2d 99 U.S. S.Ct. situation, Younger in typical (1979), Younger pre- applied thе Court in state being prosecuted defendant who is abuse vent interference with constitutionally suspect stat- court under been tem- proceedings where children had go running ute cannot into federal parents. The porarily taken from their adjudication rights of his and/or seeking an party was a abuse the child criminal injunction halting obviously important first had an The defendant must prosecution.5 and also found in them. The Court system. within the state interest seek relief civil, contempt case); right complex in to counsel could arise in a Commonwealth claim Hendrik, 225, Pa.Super. proceeding). ex rel. Brown v. 220 counsel). (1971) (right 283 A.2d 722 See “extraordinary Examples of circumstances” Chase, 472, Chase v. 287 Md. 413 A.2d 208 harassing prosecutions. are bad faith moot). (1980) (dismissing issue as See also Harris, 37, 54, 746, Younger 91 v. 401 U.S. 778, Gagnon Scarpelli, v. 411 U.S. 93 S.Ct. 755, (1971); egregious, “patent- 1756, (case by right (1973) case ly Id. 53- state statutes. unconstitutional” hearing); probation to counsel in revocation forum, Berryhill, 54; Gibson v. a biased state 1980) Page, Davis v. 1689, 564, 488 36 L.Ed.2d 411 U.S. 93 S.Ct. cases) (absolute (citing right in child to counsel Note, Developments (1973). generally Sec- Wilcox, dependency proceedings); v. Cleaver (1977). 1322-27 Harv.L.Rev. tion 90 (case by case dependency proceedings); to counsel in child Judge discussion Merritt’s excellent 4. See Welfare, Dept. 438 Sims v. State of Publ. Leis, Flynt in v. F.Supp. (S.D.Tex.1977), 1194 rev’d grounds, 1978), 439 rev’d on other Sims, grounds Moore v. sub nom. U.S. (1979) (child has to counsel proceedings); parental rights termination happened and its 5. This was what Edmiston, (W.D. F.Supp. Smith v. Mackell, cases, companion 66, Samuels Tenn.1977) dependency (right to counsel (1971) L.Ed.2d neglect proceedings); Quinlan, 406 Vail v. Ledesma, Perez v. F.Supp. (S.D.N.Y.1976), rev’d on other Mackell, Samuels L.Ed.2d 701 Vail, grounds Juidice v. 430 U.S. 327 sub nom. Younger’s supra, federalism held that contempt pro (1977) (right to counsel in civil issuing principles a federal court from barred Walker, La., ceedings); State of Louisiana a state crimi- when there was (dismissing, over dissent So.2d 908 pending. We saw no need to important pend- concerns in Trainor v. Her- interfere with 434, 97 nandez, proceedings.7 (1977), In this seek relief af- attachment prejudgmеnt to use its fecting proceedings state civil money allegedly owed procedures to collect support domestic relations cases. It is true There, important it. state interest that no underlying integrity the fiscal safeguarding state’s present. However, the state’s interest by moving programs of its social services preserving integrity of its quickly collect monies owed.6 Juidice, as proceedings, well as cases, Kenner, supra, domestic relations cases, appears that whether From these quires analyze us to Young- case or completed the state is a party er. key is a factor in deter- Younger’s mining apply policy whether to II. However, important in- of restraint. plaintiffs argue The may

terests even if the state is does be apply not because they are any not the not party a to state court Vail, might which impinge federal relief a Juidice v. pending proceeding. In their com- (1977), ap- L.Ed.2d the Court plaint, the have plaintiffs they of state that plied Younger in the context state con- summary brought subjected one been to incarceration in tempt civil liti- proceedings however, the gant past; they against important another. The do seek to relitigate anything happened in the preserving integrity interest was of its Rather, past. pending contempt they prospective seek relief orders which acted to to they of insure that are due authority judges. vindicate its state accorded they future should We principles followed these in Kenner v. charged be again with failure to make Morris, (6th 1979). There, F.2d Cir. Also, support payments.8 court-ordered a husband was involved bitter divorce/al- there pending are no imony proceedings. He filed suit in federal against any plaintiffs.9 Thus, of the named court, claiming that Tennessee statutes what seek is a women but allowed not men to judgment allegedly widespread that certain ceive alimony were unconstitutional. This practices juvenile court are unconsti- court applied Younger reasoning and af- tutional. firmed the order of dismissal below. Al- though the state was not a party to the plaintiffs’ must with proceeding, domestic relations proceed- contentions, such they go. Younger far as so ings traditionally deep are of state concern. is a applies pending restraint when there Trainor, roff, denied, (6th Cir.) the state a claimed that man and cert. fraudulently wife had collected assist- (applying Younger principles U.S. 968 filing charges, ance. ever, Instead prevent of criminal how- enjoining pend a federal court from a recoup the state filed a civil suit proceeding judicata state civil in which res allegedly wrongfully obtained benefits. Al- previous was raised of as a defense because a though proceeding civilly, state was like judgment); federal Area Louisville Inter-Faith party, thought Community Nottingham Liq., underlying significant of cause action (6th 1976) (applying Younger principles Cir. interest it. prevent party using a from a federal court to injunction.) parte an ex attack applied Younger principles 7. Other cases have dealing when with domestic relations matters. likely, Future are Williams, Williams v. 532 F.2d plaintiffs say, they because 1976); Fisher, Littleton v. any support payments. cannot afford to make also, 1976). United States v. Ohio, State F.2d 9. At as of date oral least this was true (reversing injunction against state administra- argument. tive proceedings); tax Enterprises Lamb v. Ki- or, pending as discussed a offensive to religious his beliefs. He was long proceeding. applicable So as an time, convicted each accepted punish- court, pending is in state the ment appeal. meted out and did not enjoining is barred from federal court plaintiff court, then filed suit in federal granting declaratory from relief.10 How- claiming that the state could not constitu- ever, generally ap- restraint tionally prevent him covering up from plicable where there is no offending slogan on his plates. license Steffel proceeding. This is clear from plaintiff did not ask the federal court to set Thompson, aside his threе convictions state court. (1974), L.Ed.2d 505 which allows a federal He simply sought any further grant declaratory regarding prosecutions in the future. Since there procedure. If there is no state statute were state proceedings, Young- no proceeding, federal er restraint principles inapplicable. ordinarily adjudicate free to consti- affirmed the entry questions.11 tutional relief.12 Wooley Maynard, Wooley. This case is similar As in (1977), illustrates Wooley, subjected have been principle. In that plaintiff Maynard past state court actions prosecuted fully which are in state court on sepa- three Wooley, rate occasions for covering up segment terminated. As in plates his license which he relitigate here do not seek to what occurred 5, supra, 10. As indicated in n. in Samuels v. claim that would be faced with discrimina- Mackell, declaratory tory the Court barred federal sentencing practices they bail and if were pending relief where there was a charged state criminal violating with the law. proceeding. Although declaratory relief is less Although appeal, the issue is not raised on injunction, thought intrusive than an controversy the existence of an actual case or declaratory judgment that a federal in- open question. in this case is Unlike greatly pending proceed- terfere with the state O’Shea, complaint allege the in this case does ing. Samuels, and a fed- wrongful numerous instances of Memphis conduct the may eral court not issue either a Judges. O’Shea, Juvenile Court Like judgment injunction ‍‌‌‌‌‌​‌​​‌​​​​​‌​​‌​‌​​‌​‌‌‌‌​​​‌​​​​​​‌​‌​‌​‌​‌‍or an where there are however, complaint plain- assumes that the proceedings. charged tiffs will be and hauled into they subject the future where will be to the significant problem presented by 11. A allegedly practices charged. unconstitutional requirement there be an actual case or O’Shea, plaintiffs they claimed that controversy for the federal court to consider. likely prosecuted they were to be because Ordinаrily, prosecution if criminal is threatened engaged protest boycott in a controversial and requisite controversy, g., there exists the e. movement. The Court said that this Inn, Inc., Doran v. Salem 422 U.S. 95 S.Ct. enough presupposed was not since it that the (1975) (general 45 L.Ed.2d 648 likelihood plaintiffs would violate the law. In this prosecution); Thompson, of Steffel v. 415 U.S. however, plaintiffs they claim that cannot 452, 455-56, 1209, 1213-14, 94 S.Ct. support payments afford to make and thus are (1974) (plaintiff prose- with threatened likely contempt proceedings. to face future companion cution and had a prosecuted). However, who had been plaintiffs’ specific allegations that the possibility if the of poverty past jailing non-support of and prosecution distant, is abstract or then no con- sufficient to create an actual case or controver- sy. exists, troversy g., Littleton, e. O’Shea v. U.S. (general allegations 94 S.Ct. 38 L.Ed.2d 674 injury specu- of future too Ordinarily, a court would enter declaratory lative); Boyle Landry, 401 U.S. concluded, however, relief. The Court that in (1971) (same). 27 L.Ed.2d light past prosecutions, of formal Littleton, 493-99, supra In O’Shea v. Maynard, appropriate Wooley relief was 674-77, justiciable S.Ct. at the Court found no 705, 711-12, controversy plaintiffs case or leged had al- Redhail, (1977). See also Zablocki v. magistrates that state discri- (1978) (affirm- sentencing practices. minated in bаil and The injunction against district court’s state stat- plaintiffs’ complaint Court noted that was con- persons sup- prohibiting who ute owed child permission. clusory specific allegations and contained no marrying port No from past deprivation rights. important, More pending.) speculative Court for the against A. only wish past, but rights. of constitutional deprivation future The first we case examine is Rizzo v. no Wooley, there is As Goode, proceeding. L.Ed.2d 561 The in Rizzo plaintiffs, there is for the Unfortunately brought 1983 suit named offi- between case significant difference one city Philadelphia cials of the and Phila- presented a case Wooley. Wooley delphia Department, claiming that Police alleged that a state plaintiff where the encouraged police miscon- the officials had applied as statute was unconstitutional steps take even basic duct and had failed to in this case do not him. The to stop it. The district court found no Rather, statute. challenge any on the policy part defendants’ to violate allege pattern prac- of unconstitutional rights, citizens’ constitutional but did find proceedings in tices in civil police department discouraged Memphis. state Juvenile Court complaints police and otherwise condoned whether we should extend question is principles comity The district court found Younger and misconduct. also solely federalism to bar relief because of misconduct, police while limited to a possible undue interference with the con- officers, unacceptably frequent. few proceedings. duct findings, Based on these the district court department po- ordered that revise its III. complaint handling lice manuals and citizen between There exists much tension procedures. Younger’s “longstanding endorsement of concluded that Court against federal court interfer- policy gone district had too far. proceedings,” ence with state court and the for this conclusion. cited several reasons notion сourts fearlessly that federal exist to First, nothing had the named defendants rights. protect constitutional In the classic do Younger scenario, police with the actual misconduct on the this tension is resolved by deferring best, city street. At officials who were all, After federal court will probably see sued had failed to act when confronted with issue constitutional later on a habeas Rizzo, citizens’ claims misconduct. police of or, corpus proceeding, Wooley, as in 371-73, 96 S.Ct. at 604-05. supra, at prospective declaratory relief action. Second, the actual instances misconduct practical Younger purposes, postpones, were, thought, too few and far Court eliminate, but does not federal review of Rizzo, 377-80, supra between. S.Ct. questions. constitutional at 607-08. there is no proceed- Since state of federalism The Court’s brief discussion ing, this case does not a classic suggest in a federal court Rizzo did not that Younger Instead, scenario. case police to order a local authority lacked the presents analogous problem of federal reform department agency or similar practices. interference with state court In opinion Rizzo is a narrow procedures.13 cases, two Court has extended unique which concluded that on the facts Younger princiрles to bar intrusive federal it, before there was insufficient basis for procedures. relief over state For reasons the federal district court to have issued the below, outlined we find these cases control- ling here. relief it did. Rizzo counsels restraint when Medrano, impose g. 13. In Allee v. officials. See e. Milliken v. (1974), example, Bradley, entry 1976) injunctive (1977) aff'ng Court affirmed the against police (federal authority arising misconduct to order re a strike court has broad Nothing suggests past situation. in Allee or Rizzo medial relief to overcome the effects of segregation). that there is substantive limit to the nature school unconstitutional injunctive of federal relief which а court can considering supervisory The Court’s rationale for this latter hold- agencies, but does not bar against state ing squarely based on federal- appropriate. such relief where ism principles.15 Although recognizing that no injunction against pending question the state agency When a court, however, equitable sought, restraint Court appear nearly considerations to be absolute. that potential interference with the way interpret At least is the we state courts unacceptable. O’Shea, Littleton, O’Shea the Court noted that were (1973),rev’ng Littleton injunction “an controlling aimed at 1972), Berbling, preventing the occurrence of specifiс legally indistinguishable case which we find events might take place the course from the instant case. of future state criminal trials.” Id. at O’Shea, class sued the 94 S.Ct. at 678. local prosecutors judges, claiming rejected The Court possibility of such selective enforcement and administration of federal relief as “intrusive and unworka- the criminal law. Specifically, plain- ble.” The Court noted that a federal QId. alleged tiffs county the defendant order require ongoing super- magistrate judge regularly were violat- vision of how the state acted rights their respects: 1) setting in three numerous criminal cases. There even exist- bond in arbitrary criminal cases based on an ed the рossibility schedule regard to individual fact against the judges. equat- The Court situations; 2) discriminatorily sentencing ed this injunction intrusion with the sentences; longer them to and harsher unlawfully requiring plaintiffs to pay for prohibits. pointed out that oth- Court ‍‌‌‌‌‌​‌​​‌​​​​​‌​​‌​‌​​‌​‌‌‌‌​​​‌​​​​​​‌​‌​‌​‌​‌‍jury trials in local criminal er, less intrusive avenues of relief were claimed that the reason for appeal system, the state discriminatory justice administration of available: within relief, (mostly) was that black and corpus had federal habeas federal crimi- been conducting peaceful protest and eco- prosecution judges.16 of state nomic boycott activities in the area. ruling sig The Court’s O’Shea Court found that the com- dealing with nificant because the Court was plaint failed to state a cause of action. un complaint which had been dismissed First, the Court did not think that 12(b)(6).17 der The Court con F.R.Civ.Pro. plaintiffs’ allegations presented a suffi- circumstances could cluded that under no ciently dispute showing concrete of in- provide the federal court the relief asked.

jury up to make an actual case or contro- course, is far different from ruling, This O’Shea, 490-99, versy.14 supra at Rizzo, merely con that in Second, 673-77. concluded that a injunctive relief was war grant equitable federal court cluded that no could lief any in event. ranted on the record before it. pointed supra. although

14. See n. 16. The Court out that im- suit, mune from crimi- civil can be nally prosecuted brief, under 18 242 for plaintiffs part U.S.C. In their refer to this willfully depriving opinion They a citizen of his constitutional the Court’s in as dicta. O’Shea O’Shea, rights. supra, 414 U.S. at are incorrect. The Court’s determination that equitable at 679. no relief could issue was an alterna- True, holding. tive Mr. Justice Blackmun course, issuing is, that the Court was an unneces- that a com- 17. It hornbook law sary advisory opinion provision plaint on this issue. 414 U.S. be dismissed under this cannot 504-05, (Blackmun, plaintiff at J. could advance no set of facts unless a concurring part). Conley majority in A of the Court entitle him to relief. which would him, 41, 45-46, apparently Gibson, did 101- with however. Cases such as Rizzo reiterate the classic ed to the “legality pretrial detention rule that federal courts should interfere judicial hearing, without a an issue that only with state kind could not be raised in defense of the crimi- when called for. established a prosecution.” Id. at 109n. 95 S.Ct. at near-absolute restraint rule when there are Gerstein, 1) 860 n. 9. In the plaintiffs criminal proceedings. sought pretrial probable hearing, cause O’Shea, effect, in extends this near-absolute the claim could not be in raised restraint rule to situations where the relief criminal sought would interfere with the day-to-day We do not believe that Gerstein controls conduct of state trials. First, here. Gerstein dealt with аn issue which was collateral to a pending B. Second, proceeding. question raised in controlling. We find O’Shea The relief Gerstein was plaintiffs whether the had a plaintiffs seek in this case would right hearing. to have a The very existence monitoring of necessarily require the man- hearing right Third, of a was at issue. juvenile judges ner in which the state con- hearing right issue could not be raised in contempt hearings ducted in non-support any pending proceeding. O'Shea, plaintiffs cases. In attacked In this question is not whether sentencing practices bail and prac- and the plaintiffs hearing have a to a requiring tices of state court defendants to contempt disputes cases. No one Here, pay jury trials. they right. Rather, have that attack judges’ alleged the state failure to claim judges, the Juvenile Court let defendants conduct a defense or have practice, do not accord fathers the assistance of appointed counsel. We see minimum due in contempt proceed- legal no distinction between these claims ings. words, object- are for purposes of this case. The federal in- ing to the manner in which the terference with the state hearings are Finally, conducted. such be as serious here as it was feared to be in claims can clearly be raised in the O'Shea.18 hearings themselves and dealt with Ten- they asking Plaintiffs claim that all are courts, necessary. if appellate nessee’s for in this lawsuit is hearing a fair when they are hauled into court on recognize that there are fine charges non-support. They analogize ques distinctions in this area. The critical they sought seek to that in Ger tions are whether the issue raised is collat Pugh, stein v. principal eral to the Gerstein, the Court whether state court relief is available.19 persons ruled that who were jail await example, hearing rights For ing trial had the rule, clearly constitutional to a set out in a statute or court hearing to determine whether there pass upon existed federal court can their constitu probable cause that had adequacy. committed a tional Fernandez v. Trias crime. The Court found Younger Monge, (1st 1978)(“claim no bar to federal relief. The reason was that addresses statutory procedure, not its administration; Gerstein relat- only daily relief, fashioned after O’Shea, infringe It is true that unlike the state that would on a criminal defendant’s question religious no, majority here are civil and not beliefs. The said at least I, part criminal. For reasons outlined in not until the state Court had been significant. we do not find this distinction to be given opportunity pass an to on issue. declaratory granted dissenters would have Determining 19. whether this criteria is met is lief, reasoning that the issue raised was collat- easy. Chesimard, In State of N.J. v. 555 prosecution eral to the state criminal (3d banc), (en F.2d 63 Cir. the issue was unduly and that federal relief inter- whether a federal court could order a state fere with it. judge Friday not to hold court sessions because

9 integral attack was Pugh, only underlying would outline to v. Gerstein civil standard, proceeding against fraud.) for leaving the defendants process due minimum operational and the procedures choice of Moreover, there is no clear statute or follow- [state].”). Similarly, details to the court rule governing contempt pro civil Gerstein, court can declare ing a federal govern in Tennessee.21 ‍‌‌‌‌‌​‌​​‌​​​​​‌​​‌​‌​​‌​‌‌‌‌​​​‌​​​​​​‌​‌​‌​‌​‌‍The law existence right to the person that a has the ing judge-made and in contempt right has been hearing requirement of a where that cludes a that due be Leis, plaintiff alleged met. The this due 574 F.2d Flynt denied the state. v. by process requirement being is not followed grounds, 1978), on other (6th 874 Cir. rev’d judges Memphis. certain state While 698, 438, 58 L.Ed.2d 717 99 accept allegations we must these as true for (1979).20 there is no to purposes, reason be regard contempt However, we cannot appellate lieve that Tennessee’s courts here as collateral proceedings in issue would tolerate summary and indiscriminate pending proceeding, as was the another jailing fathers. On the con Gerstein, Flynt, supra. case in appellate courts have trary, Tennessee’s are in It true that hearing con long required that a fair be general sense “collateral” to a court’s cases, g. Leonard v. contempt ducted in e. However, decree. support alimony or Leonard, 609, 207 Tenn. 341 S.W.2d 740 such are the state mechanism Bowdon, (1960); Bowdon v. 198 Tenn. just used to enforce such decrees as crimi- (1955); v. Met Rutherford S.W.2d are the state mechanism calf, (1918); Mayer Mayer, 6 Tenn. used to enforce the criminal law. See Trai- (Tenn.App.1975). this case S.W.2d Hernandez, supra at 446 n. alleged nor v. involves the failure of some state judges prоperly follow the law.22 (state procedure at 1919 attachment Ellis, generally Contempt Flynt, provision cases. See there was no under Ohio Pow- adjudication Courts, hearing law for or formal ers of Tennessee Tenn.L.Rev. judge pro when a state trial denied hac vice lawyers. admission to out-of-state attorneys Out-of-state pro privi- vice who were denied hac federal relief cannot be Our conclusion that suit, leges brought only but after a federal granted at this time is in accord with unsuccessfully sought had relief in state court. ques similar courts which have considered injunction halting This court an affirmed Bradshaw, tions. See Henkel pending state criminal trial until two law- (9th 1973) (federal grant court could not Cir. yers why they pro were told had been denied relief to father who hac vice admission. This court appointed pend alleged counsel in attorneys enough property had of a interest non-support pro being employed to warrant immediate relief. Gilliam, ceedings). also Munson v. reversed, disagreed 1976) (injunction F.2d 54-55 Cir. attorneys’ concluding employment in- that the charges prosecutor’s bringing protec- terests did not deserve constitutional Young types on in certain of cases overturned tion. We note that this court and the City grounds); Bonner v. Court of er Circuit Court reserved the issue of whether failure to Louis, St. 526 F.2d 1335-37 pro any typе hac allow vice admission denied, 1975) (en banc), cert. hearing might of a violate the client’s Sixth (1976) (dismissing Right Amendment to Counsel. Consideration Younger grounds, alleging an action on by Younger of that issue was barred v. Harris engaged racially-based certain conspiracy since it could be raised in the prosecution. plead coerce black defendants Kern, (2d guilty); Wallace v. denied, 1975), cert. gives Juvenile 21. T.C.A. Tennessee’s § (reversing (1976) a district power imprison Courts the same for con- changes ordering judgment in state substantial tempt possessed by which is other Tennessee procedures; with the state addition, interference specifical- bail Courts. ly T.C.A. 36-231 unacceptable, especially procedures since imprisonment allows in bastar- existed); cases; adequate dy paternity Gardner state remedies see 23- §§ also T.C.A. 1974), However, Luckey, cert. cited 901-905. any we have not been denied, statute or court rule which outlines the Younger grounds, (dismissing ac- procedure to be followed in civil at a however, proper occur state trial. The Plaintiffs, argue remedy that there ex- is here appeal circumstances” individual “extraordinary corpus ist and/or habeas worse, relief. The injunctive federal cases. justify For better or for the Su- make is that argument plaintiffs preme main Court has that constitutional decreеd redress in the means of adequate settings have no violations in state trial must be true, state courts. Were system. first handled within the state That However, we appeal. in this would succeed we is the effective command of O'Shea and argu- accepting the difficulty have great must follow it.26 jailed for person ment that a Judge Bailey Brown was correct in dis- of Tennessee non-support missing complaint. cursory Even a appeal. right has no Affirmed. that there law reveals review of Tennessee remedies.23 ample state exist MERRITT, Judge, concurring. Circuit however, note, that federal relief is the Tennes- forever. Should foreclosed by I with the result reached unwilling be unable or appellate see courts conclusion that the ab- Court and with the continuing unconstitutional con- to correct Younger v. Harris is stention doctrine of judges, plain- by duct the Juvenile Court however, that disagree, I applicable. showing position tiffs then would be be Younger v. Harris should doctrine of which would “exceptional circumstances” plaintiff does not seek to applied where the warrant federal relief.24 Alter- The existence enjoin pending state case. always have the natively, part is a crucial pending of a state case remedy corpus of federal habeas available doctrine. Here abstention in individuаl cases.25 relief seems to me that the affect state cases. It would affect enjoin

A federal court can unconstitution- now before the de- all those cases al behavior a state administrative offi- involving contempt proceed- fendant cial or officer. Even in law enforcement ings against allegedly who have proceeding, the absence of a fathers however, sup- grant pay required alimony a federal court cannot failed to regarding practices unconstitutional which port. analogous seeking be to the tion massive reforms in the state writ mandamus used Busse, office); F.Supp. system. defender’s Mudd v. the federal (N.D.Ind.1977), opinion, aff'd without denied, (7th Cir.), Wilcox, F.2d cert. 24. See Cleaver v. 499 F.2d (1978) (dismissing 1974) (entering declaratory relief on claim Younger grounds to re action dependency appointed in child counsel procedures). form state bail But see Cicero v. repeatedly courts had where state Olgiati, F.Supp. (S.D.N.Y.1976) claim). denied this (declaratory judgment regarding parole procedure barred). Ordinarily, of exhaustion of ad- the doctrine applies when ministrative or state remedies impos- long judgments

23. Tennessee has held sought. corpus federal habeas ap- a fine or be sentence for Rodriguez, 2254(d); U.S.C. Preiser v. § pealable, long at least so as the U.S. However, presenсe: not committed in the court’s Robin- requirement jurisdictional Draulics, ‍‌‌‌‌‌​‌​​‌​​​​​‌​​‌​‌​​‌​‌‌‌‌​​​‌​​​​​​‌​‌​‌​‌​‌‍is no there son v. Air 214 Tenn. 377 S.W.2d exhausted, just strong (1964); Leonard, that state remedies be Leonard v. 207 Tenn. (1960); comity. appropriate Wright S.W.2d 740 State ex rel. considerations of Upchurch, illegally person being 194 Tenn. 254 S.W.2d 748 confined where a Marine, (1953); act, Hundlhausen v. U. S. 52 Tenn. immediate and the state courts are slow to granted. United relief can be See Arnold, appeal, In addition Ten- of direct States ex rel. Sanders v. litigant J., (3d 1976) (Adams, dissenting). nessee offers a relief via what it terms a writ of certiorari. The writ is available when- “acting illegally” ever an inferior tribunal is attorneys appellants’ for their 26. We commend exceeding jurisdiction. 27-801. T.C.A. very good argument. brief and oral also, appears T.C.A. § 27-802. This writ

Case Details

Case Name: Jerry Parker, Jr. v. Kenneth Turner

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 19, 1980

Citation: 626 F.2d 1

Docket Number: 78-1063

Court Abbreviation: 6th Cir.