*1 dаys within 20 wish, briefs file additional offer varie- Both defendants award. ages findings are made. supplemental after be- explain the difference theories to ty of plaintiff’s and the Judge’s award tween the REMANDED. description more precise claim. Without proper to be damage found of the items based, we total award
and on which the or do these theories
are unable assess We there- plaintiff’s claims.
justice to findings that for supplemental
fore remand neces- this the information give
will sary meaningful review.1 al., Plaintiffs-Appellants, Sandy et EALY point appeal on this
One raised concern. Much gives particular us al., Talmadge LITTLEJOHN et by Boh Bros.’s performed repair work was Defendants-Appellees. force, using plaintiff’s own regular work 74-3913. No. From trial court’s equipment. tools and items included description of the Appeals, Court of United States Judge award, it al appears total Fifth Circuit. to recover overhead and plaintiff lowed the 8, 1978. March use of its internal value for the a fair rental clearly are recov These items equipment. Sulphur g., Freeport E. Co. S/S
erable. Cir.,
Hermosa, 5
However, clear whether the it plain for the profits reasonable
included equipment person
tiff’s use of own Had the the award. calculating
nel to do the another business
plaintiff paid work, charge certainly would re
repair fact that profit. The
flect an element not make did the work itself does
plaintiff recoverable, less of profit
the element tort victim in the sense that the
certainly from a further “loss”
ought not suffer might equipment
the use of its own profitable outside engaged
otherwise be the tradi analogous
employment. It remand, On
tional allowance for detention. determine wheth
the District Court should equip
er “reasonable rental vаlue” for profits repairs includes used
and, not, if the award to account modify
that item. certify copies
The District Court should findings the clerk supplemental appeal A new will review. panel
for this ifmay, required. parties
not be
previous
g.,
necessary
E. Noble
damages
cases.
such an itemization of
have found
We
Ltd.,
Line,
v. Bank
On June died in twenty-one-year-old youth, black Byhalia, gunshot Mississippi,from wound lawby By- inflicted enforcement officers of County, Mississippi.1 halia and Marshall The law enforcement officers were not im- subjected prosecution mediately by the state, protests this delay precipitated and boycotts by community. the black boycotts organized supervised by League, County Marshall United an as- *4 Byhalia, sociation black citizens of Mar- of County, Mississippi. shall League enjoined Subsequently, the was by the of Chancery County Court Marshall carrying boycotts. from out Its the mem- attempted, bers and officers then without success, enjoin proceed- these state court ings in appeal federal District Court. On Court, this we reversed and directed the issuance an injunction against of the en- of the injunсtion.2 forcement The latter is now force and is Jr., Oxford, Myers, Miss., Lewis John E. effective the to restrain state court from Jackson, Jr., Brookhaven, Miss., plain- rights with interfering parties the of the tiffs-appellants. engage peaceful boycotts. protests and Noble, Jr., Jackson, Miss., Ed D. for de- Attorney Talmadge Littlejohn District fendants-appellees. presented Young, the Butler Jr. incident to the County grand jury during Marshall its August not, body 1974term. That did how- ever, against any return indictments of the police three who custody officers had of BROWN, Before Judge, Chief JONES Young night the of death. his GOLDBERG, Judges. Circuit grand After on August the recessed jury BROWN, JOHN R. Judge: 21, 1974, Chief League prepared the and circulat- among county ed the of the citizens leaf- action, this 42 U.S.C.A. the § let which accused the law enforcement offi- officers and members of the Marshall Coun- Byhalia, county depart- cers of the sheriff’s ty sought United League preliminary in- highway ment and the state department of junction against Mississippi officials who failing investigation to conduct a serious allegedly with interfered the exеrcise Young into the death because he was rights. their First Amendment Dis- Littlejohn trict Court black. The leaflet also accused preliminary denied relief. We acting attorney reverse remand for not in- of as defense for the offi- proceedings consistent with this opinion. cers rather than as prosecutor. It addition- Anderson, substantially 74-3117, Cir., 2. Robinson v. 1. The facts set forth here are the No. unpublished Sept. same as found those No- Opinion vember 1974 Memorandum District Court. also League members and officers were jury hearing a ally labeled 6, 1974, about the internal and financial When, questioned September “farce.” organiza- and activities of their operations Lit- the attention of brought was leaflet A final was made to the court report tion. W. Brown of the Cir- W. tlejohn Judge investigation, at the conclusion of the County, an order was of Marshall cuit Court jury recommending that: Judge call- entered Brown immediately By Jury into session.3 this grand jury proceedings back Grand ing [be] [T]he law, Reporter the term of the Circuit Court ended transcribed the Court 7,1974. be re- September pursuant copies But of such midnight, media, order, general leased to the news Brown’s County Attorney, interroga- public, until it had District to remain session who, Mississippi Tax Attorney, and the State judgment, witnesses ted all Commission, proper that a evaluation knowledge any improper ac- so might thereof, and Littlejohn, may appropriate be made Through tivities. taken, mat- action if advisable as to the to issue to all offi- subpoenas caused of the United ters contained therein. and several members cers County. The records League Marshall Jury, Report September Grand filed also sub- League minutes of the (Exhibit 6). at 3 poenaed. Following the report4 issuance this Saturday, September On Lit- filed 1983 action its § *5 in jury reconvened and remained ses- Moore, tlejohn, Judge and D. Brown Rook days. During two that Little- sion for time complaint The al- County Attorney.5 the john jurors and the an conducted subpoenas the of that issuance the leged origin the of the leaflet investigation into into the grand jury inquiries the and thе on which its accusa- activities, financing, and information League's organization, also at- were based. The leaflet in bad faith tions and the were carried out respon- harassing of intimi- any purpose to ascertain if those and tempted with the of any personal plaintiffs knowl- in violation of their dating for the leaflet had the sible The re- person having rights. plaintiffs Amendment any knew other First edge, or of per- and temporary, preliminary a quested of the facts surround- personal knowledge, injunction6 restraining the defend- Young, of Butler Jr. manent shooting the fatal ing 7th, Saturday, September for the provided pertinent part: of date order 3. The allowing any purpose hav- of and all citizens brought has been to the at- WHEREAS it per- knowledge any improper ing activities of Sep- day of on this 6th of tention this Court taining by and death said officers said being publication circu- tember 1974 that a is Jury anything pertain- proceeding or Grand County, among of lated the citizens Marshall Court, presented ing a the be there and Mississippi activities the that the of Grand secrecy reporter court shall be sworn to Jury pertaining matter the death of of making purpose of a record under oath the of Jr., Young, properly investi- Butler Jury the all before Grand by Jury gated the and that officers Grand be delivered the Court shall sealed and alleged Attorney the District to have acted Jury upon completion the inves- the of Grand publication; in said as defense counsel tigation. publication that WHEREAS the indicates persons published more has that the grand jury report one or information 4. The Jury newspaper, and/or officers have not September said Grand of a 1974 issue local charged (Plain- as Reporter, carried out their duties under Section at 7 The Southern Mississippi; 2). laws of the State Exhibit tiffs’ WHEREAS feels that if such the Court since was dismissed from the action Moore information it should be immedi- exists permitted to himself from ately brought had been recuse he to the attention of Grand session, Young prosecution Butler homicide. Jury presently having of the which is Wednesday, August been recessed on date of declaratory judg- sought plaintiffs The also 21st, 1974, and to Court. Now, therefore, hereby it is be and ordered Jury County, class Mis- members of Plaintiff of Marshall Plaintiffs and Grand right, protected Amend- sissippi the First at 11:00 A.M. on have the be convened o’clock pointed ants from in the exercise of to certain issues which it believed interfering require Stating did not consideration.10 rights. those It further called for the ex- question” that “the viable before it portions7 of the punction transcript8 transcript was “whether should be injunc- from the state court records and an agencies depart made available to state or against Littlejohn prohibit- tion and Moore generally,” ments and the the Dis public them ing instituting any prosecution from trict Court concluded on the basis of its plaintiffs plaintiff or class based on their camera inspection transcript grand jury testimony.9 infringement plain there had no First rights.11 tiffs’ Amendment The Court II. The Book Review Under relief, injunctive citing then denied At the outset of its discussion on the statute, quоting anti-injunction 28 U.S. injunction, issuance of an the District passage Court C.A. and a from § public ment to the Constitution of the United States and not made available to the and news Mississippi order, however, and Article 3 Section 13 of the media. The transcript stated that the political purpose Constitution to associate for “inspected by any could be future having compulsory proc- without to answer Jury County, Mississippi, Grand any of Marshall or appear any grand jury ess to swer before to an- duty State line or Federal officer their questions concerning said association. upon application to the Court Exhibit Court.” public And to distribute leaflets and other 1, at 2. protected by statements which are the First Circuit, On November Fifth Amendment of the Constitution of the United through Judge Simpson, granted an States. pending appeal fifteen-day period. for a Sub- Opinion The District Court’s Memorandum did sequently, panel denied a of the Fifth Circuit request declaratory not address the relief stay appeal petition pending motiоn for a for and a and this issue is thus not before us. It will be a injunction pending appeal. R. at 57. matter to be considered the District Court 10. The District stated: framing remand in its final order. plaintiffs question The whether expunction request 7. was directed at testi- league required should be member appear mony: give evi- before (a) Regarding membership of United regarding league dence the activities of the County (b) Regarding of Marshall *6 grand jury proceedings not viable since the have those individuals who associate with the an terminated. Neither is this action to League (c) Regarding United the financial attorney prosecut- restrain the district ing plaintiffs from status and financial records of the United growing League (d) on indictments out of Regarding any the minutes of jury grand investigation. meeting League (e) the This Regarding action of United the preparation by prosecution and distribution of does not involve a threatened the leaflet criticizing Attorney attorney. the District the district and Grand Jury (f) Regarding Opinion who has attended the Memorandum at 7. mеetings League (g) Regarding of the United 11. The stated: Court why boycott Byhalia how and and began the appear It does from a review of the any testimony by and all the Plaintiffs transcript publication that its would result in protected by and Plaintiff class that is the injury plaintiffs impinge consti- nor on First Amendment. right plaintiffs tutional For the most colloquy to which are entitled. complaint specifically 8. The did not seek ex- part transcript the reveals a punction grand jury report, of the but such and, attorney between the district requested during hearing relief was the on the times, on the one members of the preliminary injunction (Tr. 190-92) and it is league hand and the members of the on the sought (Appellant’s 16-24). also here Brief at subject controversy other hand. The of the 17, 1974, mainly question September relates league to the of whether the 9. On the District Court temporary justifiable grounds restraining enjoining entered a on which order publication attorney grand jury question proceedings, the the the actions of district 27, through September grand jury considering effective der was 1974. The or- and the the Butler Jr., Young, extended from time to time subse- matter. of the issues also One orders, quent court and was in responsible publi- effect at the was whether those for the hearing. time of the District Court knowledge personal cation of the leaflet had days surrounding Two before the conclusion of the hear- material facts the death of ing, Jr., Young, any person State Circuit Brown issued an Butler order or knew of who 21, 1974,directing possession dated October script that the tran- was in of such facts. grand jury proceedings Opinion be sealed Memorandum at 8. and future Marshall 746, federal officials Coun- 1971, 91 S.Ct. Harris, 669, juries as well.16 675.12 ty 27 L.Ed.2d the Dis- expunction, question Second, fully the more On for reasons discussed court that the state concluded trict Court below, agree we cannot that there was no a entertain such forum to proper was the plaintiffs’ First Amend- abridgement the conten- answering plaintiffs’ claim. rights. trou- remedy might prove tion that a state Third, District to the extent the Judge Brown who since it was blesome stay relied on 28 2283 to Court U.S.C.A. § case, to hear such a necessarily would have hand, such reliance in a 1983 action § plain- out that the pointed below Court Supreme in view of the misplaced open right to them tiffs would Foster, holding clear in Mitchum v. Court’s appeal.13 32 L.Ed.2d 92 S.Ct. U.S. held that Lastly, the District Court authorized expressly 1983 is an § set plaintiffs prerequisites had not met anti-injunction statute. exception to the Cir., Callaway, Authority forth in Canal IV, reliance Fourth, in Part as discussed extraordi- granting Harris, is a much supra, on relief. nary than the District complicated matter more agree do not with the District Court. We indicate. opinion would First, exception we take to the manner Fifth, believed that if the District Court was framed. only which “the viable issue” judicial remedy a state availability Even that there was but one via- assuming relief,17 it was in absolutely barred federal issue,14 ble it was not the tran- whether Pape, Monroe v. error. should be made available to state script prece- is clear public gen- and the agencies departments whose civil hоlding those dent erally. Judge Brown’s October violated need not look first rights have been expressly order stated that courts for their redress. to state proceedings were not to be made available here, we reach our Because of the result public the news media.15 Fur- (i) primarily attention will focus thermore, that same order would allow not First involving the substantive 1983 claim agencies to seek court permission § violation; (ii) applica- to examine grand jury proceedings but Amendment jury investiga- underlying restraining growing 12. “This reason for out of the ments tion, equity interfering 10, supra, courts of from with crimi- did seek an see note the action prosecutions Littlejohn nal more vital is reinforced an even injunction restraining from institut- consideration, the notion of ‘comi- ing any proceedings against plaintiffs based is, ty,’ proper respect for state func- testimony grand jury. See on their before tions, country recognition of the fact that the entire 9, supra. *7 at text note up separate is made of a Union of governments, state belief that the National Government will fare and a continuance of the release, respect public to this 15. At least with little, example order is an of “TL2”: too too best if the States and their institutions are 4, supra. See note late. perform separate left free to in their their functions ways.” separate 9, supra. 16. See note 13. We are not sure whether the District Court holding plaintiffs inwas effect that had not 13, passing supra. 17. See note We also note remedies; exhausted their state availability or whether the court, holding it had that at least one federal pendent jurisdiction adequate remedy of an mili- claim to deter- to a 1983 § finding irreparable injury a tated necessary grand jury its mine whether a state exceeded relief; equitable to warrant federal authority, granted expunction relief as to cer- availability remedy or whether the was cause defendants’ motion to of the state jury in a state tain material contained report argument abstention. See on plaintiffs’ Amend- First which violated dismiss, at Tr. 9-14. N.D.Ohio, Brown, rights. Hammond v. 326, 348, affd, Cir., 1971, 343, F.Supp. 6 323 agree 14. While we with the District Court that 480, F.2d 450 plaintiffs the Littlejohn did not seek to restrain defendant prosecuting plaintiffs from on indict- 226 ments, powers are neces- investigative restraint
bility
equitable
doctrine
Branzburg, supra,
sarily broad.”
408 U.S.
here.
presented
situation
unique
to the
fact
688,
2660,
We our into unlimited, rights nor are lants’ claim with the observation 1983 In face speak freely. to § associate association right guaranteed that the First Amend a clear collision between powers Fourteenth Amendments the broad a First and ment freedoms and be jury, protect this Nation’s courts. we must careful zealously guarded Comm., each. underlying E. Florida interests g., Legislative Gibson v. 1963, 539, 889, 83 9 L.Ed.2d 372 S.Ct. helpful precedents. are not without We 929; 1958, Alabama, 357 U.S. NAACP Branzburg,18 supra, Supreme 1163, 2 78 L.Ed.2d 1488. The S.Ct. reporters required that could be held officers and members United testify a state or federal appear before County enjоy that Marshall are free to violating without freedom of id.; right. Button, 1963, See NAACP v. guarantees. speech press Justice 405; 371 U.S. 9 L.Ed.2d required White detailed the interests that Rock, 1960, Bates v. Little 361 U.S. 80 balancing and to the care- following came S.Ct. They L.Ed.2d 480. are also qualified fully conclusion: right beneficiaries aof fundamental us, before per On records now we process: democratic to speak their minds no holding ceive basis for that the public free of governmental unwarranted re interest in law enforcement and in ensur See, g., Button, straint. e. NAACP v. su ing effective
pra. insufficient to override the consequential, uncertain, but on gathering burden news Equally important to the demo is said to from insisting result process cratic is the grand jury which reporters, citizens, like respond other First, serves two salient functions. it de questions put relevant to them in the termines if probable there is cause to be course of a jury investigation valid grand committed; lieve a second, crime has been or criminal trial.19 it arbitrary shields citizens from op pressive gоvernmental 690-91, 408 U.S. at g., action. E. Unit S.Ct. added).
ed
L.Ed.2d at 645
Briggs,
(emphasis
States v.
794, 800. The grand jury and other investi
however,
Even more pertinent,
is the
gatory
operate
bodies
on
premise
refusing
Court’s basis for
establish
public
is entitled to every citizen’s evi
reporter’s
constitutional
privilege
news
dence
protected by
unless
privilege. Branz
recognized
principle
infringe-
burg
v. Hayes,
408 U.S.
rights
ment of
First
protected by the
626, 664;
S.Ct.
see Amendment must be no broader than neces-
also
Bryan,
United States v.
sary
permissible governmental
achieve a
884;
L.Ed.
Gibson v. objective.20 The
before
square-
case
us falls
Legislative Comm.,
Florida
supra.
“Be
ly
following hypothetical
within the
fact
cause
grand jury’s] task is to inquire
[the
patterns
present
Branzburg
not found
into the
of possible
existence
criminal con
plainly
produced
would have
*8
duct and
to return
well-founded indict-
different result:
Branzburg
cases,
18.
Maryland,
was heard with two other
The
20.
Court cited Freedman v.
Pappas
In
1965,
51,
734,
649;
re
and United States v. Caldwell.
380
13
U.S.
85 S.Ct.
L.Ed.2d
Alabama, supra;
City
v.
v.
of
NAACP
Martin
relevancy
qualification
appears
19. The
Struthers,
141,
862,
1943,
87
319 U.S.
throughout
opinion,
682,
Russell,
see
227
wholly
issues for
un
different
resolution
indicates that
in the record
Nothing
at will
grand juries
“prob[ing]
der
First Amendment.42 Official
these
existing need.”
relation to
and without
Harris,
42
401 U.S.
v.
Cf.
746,
(1971).
53-54,
669
27 L.Ed.2d
of New
S.Ct.
Attorney
v.
General
91
DeGregory
press
undertaken
harassment
not
825,
[, 86
383
829
S.Ct.
Hampshire,
U.S.
purposes
of law enforcement but to
(1966). Nor did
1148, 16
L.Ed.2d 292]
disrupt
relationship
attempt
protected
reporter’s
to invade
a
with his
juries
grand
rights by forcing
justification.
First Amendment
news
would
no
sources
organi
of
and
disclosure names
wholesale
juries
subject
judicial
Grand
are
to
con
purpose
for a
zational affiliations
to
subpoenas
quash.
trol and
to motions
germane to the
of
not
determination
was
forget
expect
We do not
courts will
committed,
whether crime has been
cf.
grand juries
operate
must
within the lim
Alabama,
[,
449
357 U.S.
78
NAAGP
its of
First
well
Amendment as
as the
1163,
(1958);
2 L.Ed.2d
S.Ct.
1488]
Fifth.
Button,
[,
371
415 83
NAACP v.
U.S.
S.Ct.
707-08,
2670,
produced a quantity of information that was none of grand jury’s grand jury inquiry.27 business. Bursey document, presented
24. This case differs from in the sense . I was with a require Mississippi that it is too late containing officials identical to this but the same mes- to meet this burden. The had been sage on it. . discharged present when the suit was filed. any reason, Q give you Did he Mr. Little- categories questions regarding 25. The included john, why brought you? he that document to (i) identity of the Black Panther Central A I don’t recall offhand whether he or Committee members and contacts between Judge gave They Brown me the document. foreign governments, Panthers and 466 F.2d at together, and came of course were con- 87; (ii) publication 1086- and distribution of it, allegations cerned with the contained in as I newspaper pamphlets, the Panther’s id. at was. 88; (iii) identity persons pictured 1087- you Q Judge Did Brown have a subse- magazine; (iv) in a national the source of quent funds, particular conversation about that docu- id. at 1088. ment? Indeed, protest march was scheduled and Yes, did, A Q we that time. day held on the first the witnesses were sub- you Would state what the nature of that poenaed testify. at 139-40. Tr. discussion was? me, Judge A The mentioned and in- this Attorney Littlejohn 27. District testified at the Jury formed me thаt he would call this Grand preliminary hearing as follows: investigate allega- back into session to these Q Littlejohn, Defendant I would like to di- requested Having tions if I so it. never been your rect attention to Exhibit 1 [the leaflet]. anything years accused of like this in several as you Are familiar with that document? Attorney, greatly. District it I concerned me (Examined) Quite A familiar. disturbed, deeply because it cast reflec- state, Q you sir, you Would when learned of * * my integrity Attorney. tions on as District publication you being its published? or when learned of it immediately request- Because of that I concern Judge Jury ed the Circuit to call this Grand 6th, September A On the afternoon of any- back into session to see what information And, sir, Q you how did learn that that had body had about the unfortunate death of Butler published? Jr., Young, vitally with which I had been con- Sheriff, A This was delivered to me cerned, and still am. Deputy County, or a Sheriff of Marshall who Tr. at 202-04. had come with report Brown to receive the final Jury Lafayette County. of the Grand
229 have no that the leaf spent questions We dоubt on relating League to the League the United is varied,28 let circulated a fair characterization of the con- the First Amend “speech” protected by sensus was that such percentages were sub- Sullivan, New York Times Co. v. ment. Cf. stantial. Our camera review of the 11 376 84 L.Ed.2d U.S. S.Ct. grand jury proceedings persuades that, us Nor do we doubt that District Attor 686. for the part, most their time estimate testi- Brown ney Littlejohn had not mony borne out the record and demon- duty but the affirmative authority positively strates that the jury invad- relevant bring grand jury any to before the protected by ed areas the First Amend- Young Butler bearing information on the findings ment. The District Court’s Moreover, question death. we do contrary29 impediment are no to our conclu- inquire any to as to grand jury’s authority sion, erroneous,30 whether clearly treated as knowledge facts within the witness’ law,31 questions mixed fact or re- supported the accusations in the leaflet viewed under the broader standard some- performance non-performance about employed times when First Amendment by governmental of duties officials. We freedoms are stake.32 hold, however, that the had no right League to intrude into United matters It would be a sorry day were towe having not the relationship remotest to that a grand jury allow to delve into the mem tragic investigation. event and its bership, meetings, minutes, organizational structure, funding and political activities of At the hearing be unpopular organizations pretext on the Court, fore the District League various offi might their members have some informa cers and members testified that the tion to a especially relevant crime. This internal, jury inquired structural, into the League so here. pursued business was financial, aspects and associational questioning many League. instances after the While the percentage of time which, according witnesses, knowledge witnesses had disavowed Caldwell, Secretary: Feedlot, States, Cir., 28. Executive 5 513 Inc. United F.2d 70% League, 800, 807, denied, 1975, time was on focused the United Tr. at cert. 423 U.S. 96 120-21; Robinson, President: about one min- 46 L.Ed.2d 281. spent discussing ute оut of 20 or 25 minutes case; Young spent questions Butler rest on cases, question 31. In mixed the District Court’s organization, 64; Boyd, Secretary: about Tr. at findings upheld clearly of fact to be are unless spent League; about half on United time erroneous, 52(a), F.R.Civ.P.; Rule its conclu- why spent thought other half witness Little- sions of law are not restricted this review. john job, 98; Moore, good done had not atTr. Service, See Buchanan v. United States Postal questions relating Board two Member: To F.2d n.24. Young incident; others related to or- finding extent the District Court’s ganization, leaflet and accusations made there- impingement,” there was “no of a constitution- in, 82-84; Smith, Tr. at member: time right, determination, subject 90% al is a fact it is spent 128-29; League, on the Tr. at An- Mrs. clearly erroneous But the standard. con- thony, Secretary, Byhalia ques- branch: two “impingement” clusion there was no death; Young League, tions about rest about wraps up problem balancing the whole whether Tr. 110. undisputed the admitted or of a acts were na- undermine, reject, ture to or frustrate First 11, supra. 29. See note certainly legal Amendment values and is question. F.R.Civ.P., The District held that 52(a) 30. Under Rule a trial court’s plaintiffs right worthy had no of First Amend- findings clearly of fact are erroneous when protection. That conclusion of law was reviewing “the court on the entire evidence is applying legal reached an incorrect standard. left with a definite firm conviction that a committed,” mistake has been United States v. Co., 1948, Louisiana, Gypsum g., United States 333 U.S. 32. E. Cox 525, 542, 746, 766; n.8, 471; Time, 68 S.Ct. 92 L.Ed. 545 & 85 S.Ct. George Bryson Lilly Pape, W. B. & Co. v. Norton & Inc. v. Co., Cir., 1045, 1049; Tulia L.Ed.2d 45. grand jury process cannot This abuse Young’s relative Butler death33
facts society. be in a free tolerated after and in some of those same instances *11 any the disavowed additionally witness preserve secrecy order to the In knowledge origin or authorization of here, we decline grand jury proceedings the offending questions. it We also have that to detail Suffice leaflet. confirmed questions falling that within these say questioned certain witnesses were about categories abridged plaintiffs-ap broad or League despite protests queries affairs speech pellants’ associational and free relevancy.34 as to their rights: circumstances, (i) Questions relating membership to the Under these we fail League County. of the United of Marshall see, subject how the example, was of con League any legitimate finances (ii) Questions relating to those who asso- League. cern to the Absent a ciate with the United grand jury.35 plausi explanation ble we find the record Questions (iii) relating League —and to United barren of one —we are forced to conclude general, persons meetings who attend questions League that directed to wit meetings, such and the matters discussed meetings. such nesses purely League having about business arguable no relationship or colorable (iv) Questions relating League financ- Young death posed were in bad faith for funding ing generally financing or or purpose who, funding of the leaflet. harassing those in the exercise of their First Amendment rights, (v) Questions relating to the leaflet or Littlejohn had criticized defеndant and had any printed any other or oral statement of called the grand jury proceeding League a farce. member. 35. In
34. See Tr. at 145-46.
33. Defendant
of the United
these assertions contained in
tial:
Grand
asking
rogation of the various witnesses before the
Tr. at 217.
asked
Grand
fication for this line of
proceedings,
script
personal knowledge
rounding
you
every single
al
either the names of witnesses who had
Exhibit
County
incident:
knowledge of it.
injunction hearing
norance of facts
those connected with this
Grand
A Some
Q
A I would
Q
knowledge
recall that?
Sir,
Do
light
Jury.
Jury, during
Jury
had one iota of fact
1, right
that,
you
throughout
the death of Butler
me and
questions about the
of our review of the
questions along
we find
has told
Littlejohn’s
again
witness that came before the
also
itof
but
here
concerning
my memory
confirmed the witnesses’
recall,
or that
of the circumstances sur-
Littlejohn’s
the course of
(exhibiting
inquiry
you
some members of the
of Marshall
own
to stand
term,
Mr.
League
upon
the Butler
testimony
to be insubstan-
Young,
Littlejohn,
financial,
[the
is that none of
dо
asserted
which to base
they
documents);
by
of Marshall
your
you
line were
leaflet
the tran-
personal
County?
had
person-
Jr.;
Young
status
at the
recall
inter-
justi-
that
of]
ig-
no
do
with the information about his death.
was
Tr. at 213-15.
here
they
nancial status of the United
tion,
League
ment),
was
trying
it
relevance
they
and the death of Butler
County; what was the connection between that
mation that would assist
ney
knew who
tion of this
information for indictments.
about And it was
political
ing
organization?
A
A The same connection of this leaflet
Q Perhaps
Q
Q
A I
important
inquiring
this
of the State of
financing
trying
Mr.
knew what was
You stated
Anybody
(exhibiting
had no
Would
it.
I wanted to
simply
Hi
of Marshall
association?
kind of
Littlejohn.
get
case,
to find
to find out who was
you
any
additional information.
Hs
wanted to know who was financ-
into the financial status of the
knowledge
you
involved
connected with this United
if we could find
you only
document)
assertion
information
state what the
organization.
out,
know
Mississippi,
[*]
misapprehended
I asked
County (exhibiting
going
and I
Young,
if
when
me as
[*]
wanted to know who
of it that we were
they
it.
League
you
on,
being
couldn’t unless
regarding
That is what
they
Jr.?
H*
District
had
any
Why, sir,
and the facts
what was the
reasons
financing
of Marshall
me,
distributed
had stated
additional
any
my
prosecu-
[*]
unless
Attor-
infor-
docu-
ques-
right
was
fi-
I
I
gal proceedings
disruption
to the economic
state
(vi) Questions relating
protests organized by
justice system;
Unit-
criminal
nor can federal
boycott
intervention,
circumstance,
be in-
League.
ed
upon
terpreted
reflecting negatively
as
Restraint,”
“Equitable
Starring
IV.
ability
the state court’s
to enforce consti-
Sextet,
Featuring Progeny
Younger
addition,
tutional
while a
principles.
pending
prosecution provides
noted,
Court,
previously
As
the District
plaintiff
opportu-
federal
with a concrete
Harris,
partially relying
Younger
nity
rights,
to vindicate his constitutional
part
a refusal on the
of the federal courts
injunctive
relief. The
denied
*12
proceeding
intervene when no state
is
that,
Sextet36 established
absent extraordi-
circumstances,37
pending
may place
hapless plaintiff
nary
principles
еquity,
between the
Scylla
intentionally
barred
flout-
comity, and federalism
federal
ing
Charybdis
state law and the
forgo-
courts from
enjoining pending state crimi-
Mackell,
ing what
he believes
be constitutional-
prosecutions.
nal
Samuels v.
401
66,
764,
ly
in order to
applied
protected activity
91
In ques Court answered that at 517 & n.12. negatively tion Thompson, Steffel v. 415 452, 462, 94 U.S. S.Ct. 39 L.Ed.2d partial A answer has been provided
505, 516:
cases decided after
Steffel.39
Doran v.
principles
2561,
Inn, Inc.,
922,
relevant
422
95
equity,
Salem
U.S.
S.Ct.
[T]he
comity, and
648,
federalism “have little force
45
co-plaintiffs
L.Ed.2d
two
who had
in the absence оf a pending
proceed-
subject
prosecution
not been
to criminal
ing.”
MacMullan,
Lake Carriers’ Assn. v.
sought
declaratory
both
and
re-
injunctive
498,
[,
1749,
406
509
92
U.S.
S.Ct.
32
against
Hemp-
lief
the enforcement of a
(1972).
stead,
L.Ed.2d
When no state crim-
New York ordinance. The Court
257]
proceeding
inal
is pending at the time the
held
in-
preliminary
issuance
filed,
complaint
federal
junction
federal
inter-
was not barred
the doctrine of
vention does not
in duplicative
equitable
result
le-
restraint:
36. The other members of the sextet were
1983
Federal-
ments
Law —Section
ism,
1133,
Mackell,
(1977).
66,
90 Harv.L.Rev.
1323
Samuels v.
401 U.S.
91 S.Ct.
688; Boyle
764,
Landry,
v.
27 L.Ed.2d
401
77,
758,
696;
Perez
91
U.S.
S.Ct.
27 L.Ed.2d
Younger,
concurring opinion
38.
In their
Jus-
Ledesma,
82,
674,
401 U.S.
91
27
S.Ct.
tices
Stewart and Harlan made clear that
Stein,
Dyson
701;
200,
L.Ed.2d
401 U.S.
91
injunctions
dealt
Court’s decision
with
Byrne
769,
781;
v. Kara
S.Ct.
27 L.Ed.2d
against prosecutions
contempora-
which were
lexis,
216,
777,
91 S.Ct.
27 L.Ed.2d
neously pending in state courts and not with
792.
prosecutions.
future criminal
No state
were
pending
seriously impairs
since
result
“[s]uch
enforcing
either
or Tim-Rob at the
the state’s interest in
its crimi
Salem
laws,
implicates
prelimi-
time the District Court issued its
nal
concerns for
which lie
nary injunction.
Nor was there
federalism
at
the heart of
Doran,
Younger,”
supra, 422
at
question
they
require-
satisfied the
U.S.
Amendment
They sought both de-
injunctive
prayers for
relief against state
claratory
injunctive
and
against
relief
fu-
courts and officers as shibboleths to close
ture enforcement of the statute against
the federal courthouse doors. Stewart v.
Younger
them.
was
preclude
held not to
Dameron, Cir., 1971,
5
233
428;
Vail, 1977,
327, 97
Pugh
ings,
F.2d
Juidice v.
430 U.S.
504
Thompson,
Rainwater,
Cir.,
L.Ed.2d
in which the
v.
S.Ct.
sub
grounds
on other
nom.
part
process
state’s
contempt
rev’d
involved.42
103, 95
Pugh,
420 U.S.
Gerstein
us a
falls
We have before
situation which
54;
City
L.Ed.2d
Leonard
S.Ct.
undecided
hazy,
into
interstices
Columbus, Cir., 1977,
F.2d
aff’d Younger
Progeny
analysis
defies
banc, 1978,
We decline to
en
trict Court considered exhaustion in terms
of irreparable injury, agree we do not
exhaustion was required. While the Dis
trict did not express Court views on the
third requirements, and fourth the burden little, opinion
of this if anything, leaves
open remand as to these issues.
VI. Denouement
Since District Court did not have
before it more recent Supreme pro- !)« injury plaintiff outweighs sfc % :fs sfc if: the threatened injunction may BY THE COURT: the threatened harm the do to any question defendant, (4) granting prelimi- Was there about fi- Q organization being nary injunction public nances of the taxable or will not disserve the nontaxable? interest. Yes, sir, question A prerequisites granting injunctive arose in the course four questioning grand jury, questions before the Your relief involve mixed of law and fact *16 Honor. reviewable under the standard set forth in Bu- Service, Cir., And that was the action of the chanan Q v. United States Postal
jury, part with reference (note to that of it? supra). 508 F.2d 267 n.24 Yes, A sir. 11, supra. 51. See note Tr. at 260-63. Authority Callaway, 50. Canal testimony injunction hearing 52. The 572: chilling grand jury proceedings effect of the See, 128-30, unchallenged. g., stands e. Tr. at (1) plaintiff a substantial likelihood that 145, 160-61, 183, merits, prevail (2) will on the a substantial plaintiff irreparable threat will suffer injury (3) supra. granted, if the is not 53. See text at note 17 and note