Opinion
No. 75-2344.
October 26, 1977. Specially Concurring Opinion January 4, 1978.
Ellen Leitzer, American Civil Liberties Union Foundation of Ga., Inc., Atlanta, Ga., Joel M. Gora, American Civil Liberties Union, New York City, Margie Pitts Hames, Atlanta, Ga., Melvin L. Wulf, Amer. Civil Liberties Union Foundation, New York City, for plaintiffs-appellants.
Lennie F. Davis, City Atty., E. H. Polleys, Jr., Assoc. City Atty., Columbus, Ga., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Georgia; J. Robert Elliott, Chief Judge.
Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges.
The panel opinion in this case is reported, Leonard v. City of Columbus, 5 Cir., 1977, 551 F.2d 974.
Upon rehearing at New Orleans on September 28, 1977, the Court en banc adheres to the panel opinion as published.
The judgment of the District Court is
REVERSED and REMANDED.
Though I agree with the court's decision, I wish to acknowledge developments in the case law since Moreno v. Henckel, 431 F.2d 1299 (5th Cir. 1970), lest its bare citation convey the impression that exhaustion and abstention in section 1983 suits are not issues for future argument in this circuit.
The first of these developments came less than a year after Moreno, with the Supreme Court's opinion in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). And although the Younger abstention doctrine has thus far found application only in cases concerned with the exercise of state enforcement powers, it could conceivably require federal deference whenever a strong state interest has attached, as when a state court becomes substantially involved in a private action against a defendant who wishes to raise constitutional issues in federal court. See Developments in the Law — Section 1983 and Federalism, 90 Harv.L. Rev. 1133, 1313-14 (1977). See also Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).
The second post- Moreno development perhaps foretells an erosion of McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), which established that persons suing under section 1983 need not exhaust state administrative remedies before seeking federal relief. In its later decision of Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), the Court intimated that administrative exhaustion might be appropriate in section 1983 actions when the state initiates the administrative proceeding and when the individual charged suffers no deprivation prior to the completion of that proceeding. Id. at 574-75, 93 S.Ct. 1689.
Finally, I note several cases, as yet of uncertain import, in which the Supreme Court has relied upon the adequacy and availability of state remedies. See Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 1415-16, 51 L.Ed.2d 711 (1977); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Of course, both Ingraham and Paul are explainable as attempts to limit the scope of expansively worded constitutional provisions. See Developments, supra at 1269-70. But if federal rights are to be defined with any reference to the substantive guarantees afforded by state law, it is reasonable to conclude that federal remedies should likewise be fashioned with due consideration for the avenues of relief available in state courts and administrative tribunals. This conclusion gains strength from the Court's potentially significant statement in Stone v. Powell that, "[d]espite differences in institutional environment and the unsympathetic attitude to federal constitutional claims of some state judges in years past, we are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States." 428 U.S. at 494 n. 35, 96 S.Ct. at 3051.
I therefore offer this brief concurrence in the belief that the law is presently in transition here and that, since it is, resting this decision, as does the majority, on a mere citation of Moreno's seven-year-old authority wrongly implies that it is static.