*3 рrac- probation officer, the normal chief TUTTLE, Before BELL and AINS- probation is to leave the orders tice WORTH, Judges. Circuit of victim allow the and pro- certify to the crime to his losses the Judge: TUTTLE, Circuit date. In this office later bation case, records of the criminal the This action attacks the constitution- judg- or making office no order ality clerk’s contain of statute mone- containing any by tary by the trial court to restitution the victim the con- figure for the amount restitution to perpetrator of condition victed of a crime a Morgan. by paid Only testimo- probation.1 challenges of made are: ny probation the officer does thе (1) applied by de- that the as record below indicate the victim’s fendants violated the due clause $11,000, the vic- total loss was some of the Fourteenth because Amendment goods, tim recovered about no court was held determine to by “not insurance” that his loss covered the amount of to restitution be demand- aрproximately later (2) probationer, ed appar- copy probation,” pro- of the “order statute on its face violates pro- ently by out as filled to amount tection clause the Fourteenth Amend- office, there had been inserted bation ment because it calls for the origi- space coрy probation of, the blank for, incarceration figure indigent $7,345.69. pay nal order the who defendants cannot non-indigent that he was told at still later date while defend- pay to paying would have by ants avoid incarceration figures present- None of these was ever the restitution. court dis- by approved by justiciable, to or ed be considered missed both claims non sentencing judge; saying inference that “the record does not indicate the threat of im- probation record is office minent.” ju- filled in the amount without further scrutiny dicial until the events dispute.
The relevant facts are not Morgan, plaintiff-appellant, transpired. received are discussed below listing by Code § condi caused his offense in an amount probation, says: by court, provided, tions of determined how- reparation ever, “The court shall determine the terms that no restitution to or probation aggrieved person damage may pro- any and conditions of or probationer vide that shall . lоss caused shall made offense (7) reparation any dispute make or restitution if unless to aggrieved person damage adjudicated.” for the has been or loss same following Morgan, arrested another statements Wof- subsequent months to the June from the sec- ford record this several proceedings, hearing: never lеarned about ond by the determined amount of restitution going “Well, money this to have probation be owed paid.” officer “receiving stolen the victim got “By golly, he’s ef- make an goods” re- he was offence until after go jail. fort to or it Which begun custody had
leased from
porting
going
it
to be ?”
probation
this
office. At
probation
time, the
officer told
going
money
“Son,
you
pay $7,000
he
would have
you
jail?
going
or are
You want
remaining
period.
during
go
.
.
.
satisfy
require-
In order for him to
jail
up
and finish
time
we’ll
ment,
would have had make
*4
it
mark
off?”
per
dura-
ments
week
$35.00
you
“I want
to
mean ex-
know that I
probation.
tion
his
actly
saying.
argument,
what I’m
No
him,
When this sum was demanded of
nothing.
gоing
pay
no
to
You’re
Morgan
lawyer
public
went with a
you’re going
to come
probation officer to the
pleasantly
going
you’re
it
or
judge’s
complain
chambers to
jail.”
to
$7,000 figure. Though Judge Wofford
being
appeal
There
no
from this hear
$1,000 fine,
remitted
he said that
being
ing,
none
available under
the matter of restitution was closed and
Goergia law, so far as
to
has
called
Morgan
paying
had the choice of
it
attention, Morgan
filed suit
going
jail.
or
Subsequent
to
to
Declaratory Judgment Act,
hearing, Morgan
never met a $35
2201,2 seeking a
C.A.
declaration that
§
ment, and the
restitu-
total amount of
requiring
statute
was un
paid up
filing
tion which he
until the
requesting
сonstitutional and
de
alleges
Morgan
this suit is
$190.
enjoined
enforcing it.
fendants be
payments
he cannot meet the
ordered be-
three-judge
requested
A
in ac
was
indigency,
cause of his
but the record is
cordance with 28
U.S.C.A.
2281
question
inconclusive on the
of his ac-
deal with the
inability
pay.
tual
challenge
statute;
due
Morgan
When
felt that
manner which the
was
statute
imminent,
was
he obtained
plied
complaint
was added to the
assistance of counsel from the American amendment.
Civil Liberties
counsel
Union. His new
immediately sought
hearing be-
another
deal first
due
with the
sentencing judge,
argument.
fore the
plaintiff
reiterat-
who
ess
claims
Since the
ed that
applied
of restitution was
that Section 27-2711 was
question
not
validity
law,
and that
without
go
jail.
would either have to
or
of the statute itself is not
into
drawn
controversy
permanent
injunc-
2. “In
interlocutory
a case of actual
within its
3. “An
or
jurisdiction,
except
respect
opera-
restraining
enforcement,
to Fed-
tion
taxes, any
States,
аny
eral
court of the United
tion
or execution of
State
upon
filing
appropriate pleading,
any
granted by
anof
.
shall
dis-
not be
rights
legal
declare the
and other
trict
court or
thereof
any
party seeking
unconstitutionality
lations of
interested
such
declaration,
application
such
whether or
therefоr
is
not further
statute unless the
Any
sought.
relief
is or could be
heard and determined
a district court
”
judges
declaration shall have the force and effect
of three
.
.
.
of a final
and shall
decree
reviewable as such.”
three-judge
applied
the Fifth Circuit has
question,4 and
pending
is no
there
panel
situations where
issue is obviatеd.
review this
only
prosecution, but
state court
view that
The district court’s
prosecution,
see Thevis
threatened
does
indicate
“the record
not
(1972),
have
Seibels,
minent because due as adjudication amount (b) v. no of the Morgan’s control, that adjudication pro- The lack of presents no bar Harris flatly (c) claim, claim where amount is contested this tection statute, meritorious, questions in of the Ga.Code the face likewise State, O’Quinn 123 Ga. jurisdiction Cf. beyond to determine 27-2711. (1970). However, App. 231, be- appellate 173 S.E.2d tribunal.7 as an am- trial court’s that the we think cause way Second, by of res- amount due holding biguous were that both issues of sen- unknown at the time titution was tencing, prejudice an justiciable should sup- having question attempt cannot we to raise the department plied later part reach, require that the Third, appellant contested of the court. finding question order below not re- he was due amount pro- justiciable for further remanded per- sponsible only or was one of several ceedings trial court goods responsible sons for stolen appointment of a three seek had not been recovered. judge court. should On the district court remand part Rеversed and remanded. whether is dis- first determine so, appellant
puting amount due. If BELL, prima (specially required con- fa- Circuit should be to make a curring) cie is incorrect. : case that amount prima made, de- facie case is Once process question due discussed process nial of due adjudi- opinion was nоt Tuttle’s presented to date. circumstances Appellant cated court. district grant The district court should then contended district court lief to granting conditioned on the state disputed paid as had the amount ordered appellant in the restitution but equal protection the focus was on due as res- determinatiоn amount question he could —that titution. weekly not make ments and would be incarcerated as facial Code § process ques- result thereof. The due insubstantial, wholly unless presented com- tion was in an amended presents question three-judge for a plaint. district and was not considered The state answered the due cоurt. Nor did district question proof equal protection question reach *7 probation de- was set arising proof indigency. from the investigation partment after but ques- court these avoided 27-2711,1 statute, under the Ga.Code § ap- did not tions on that it adjudication by there would be an pear that imminent. sentencing judge in case the amount appear It does this conclusion of disputed. position It state’s the court was incorrect. The disputed had never supervisor testimony made it in his clear amount. court the district carry pertinent refusing Three facts from out be incarcerated proceeding record of and this state regardless ability pay. sеntencing state court for of his relief weekly payments, and from fed- court had a hear- conducted ing spec- First, although appel- ability required eral record. and had payment. weekly appears, request relief, ified It how- lant did 3, supra. Appeal equal protection is, 7. See fn. Because in such case course, Supreme Court. 27-2711, fact of Code judge panel opinion. required a three 1. Tuttle’s to hear it. Fn. changed ever, thereafter that conditions steady not have did in that employment. It is not clear what ap- procedure would have change pellant relieved due to earnings.
questions matters reconsidera- formulating In tion on remand. consider court should wheth-
the district questions presented are so analo-
er the corpus
gous to re- relief as habeas
quire of state remedies. exhaustion Decker, Cir., F.2d
Jones v. Cir., Walker, 954; Johnson v.
reached opinion. Tuttle’s reached America,
UNITED STATES Appellee, Defendant, PLANTE, Appellant.
Richard America, STATES
UNITED Appellee, TRANT, Defendant, Appellant.
Bruce
Nos. 72-1145. Appeals,
United States Court of
First Circuit.
Argued Dec. 1972.
Decided Jan. April 23, 1973.
Certiorari Denied
See