976 F.

2d 673

Horace LUCKEY, III, M.V. Booker, William F. Braziel, Jr., G.

Terry Jackson, Joseph Saia, Charles Thornton, on their
behalf and on behalf of all persons similarly situated,
Beverly Cannon, Plaintiffs-Appellants,
v.
Zell MILLER, Governor, Joe C. Crumbley, Hon., Chief Judge
of
Clayton Judicial Circuit, Robert J. Noland, Hon.,
Chief Judge of Douglas Judicial Circuit,
Defendants-Appellees.
No. 92-8038.

United States Court of Appeals, Eleventh Circuit.

Nov. 4, 1992.

Neil Bradley and Laughlin McDonald, American Civil Liberties Union

Foundation, Inc., Robert B. Remar, Megan E. Gideon, Remar &
Graettinger, PC, David A. Webster, Sumner & Hewes, Eric G. Kocher,
Atlanta, Ga., for plaintiffs-appellants.
Alfred L. Evans, Jr., Sr. Asst. Atty. Gen., Dennis R. Dunn, Asst. Atty.
Gen., Atlanta, Ga., for plaintiffs-appellants.
Appeal from the United States District Court for the Northern District of
Georgia.
Before KRAVITCH and COX, Circuit Judges, and DYER, Senior Circuit
Judge.
PER CURIAM:

Affirmed on the basis of the order of the United States District Court dated
December 16, 1991, attached hereto as an Appendix.
AFFIRMED.

2
APPENDIX
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ROME DIVISION
CIVIL ACTION 4:-86-cv-297-HLM
3Horace Luckey, III, et al., Plaintiffs,
4v.
5Joe Frank Harris, Governor, et. al., Defendants.
ORDER
6

This case is on remand from the Eleventh Circuit, and is presently before the
Court on Plaintiff's Motion for a Preliminary Injunction and on Defendant's
renewed Motion to Dismiss. As this Court finds the Defendant's Motion to
Dismiss should be granted, the Court does not reach the issues presented in
Plaintiff's Motion for a Preliminary Injunction.
A. Procedural History

This case has, thus far, been the subject of four decisions by the Eleventh
Circuit Court of Appeals. The first decision, Luckey v. Harris, 860 F.2d 1012
(11th Cir.1988), ("Luckey I") reversed this Court's grant of the Defendant's
initial motion to dismiss. The Appellate Court held that Plaintiffs' Complaint
did state a claim upon which relief could be granted and that it was not barred
by the Eleventh Amendment. The Appellate Court did not address Defendant's
abstention arguments.

Abstention was addressed, albeit in a dissenting opinion, in the second

Appellate Court opinion in this case. See, Luckey v. Harris, 896 F.2d 479 (11th
Cir.1989) ("Luckey II"). In Luckey II the Appellate Court denied a motion to
rehear the case, and also denied a motion to hear the case en banc. The majority
of the court did not issue an opinion. Four judges, however, dissented from the
majorities' decision in an opinion written by Judge Edmondson. Judge
Edmondson's opinion, joined by Judges Fay and Cox and Chief Judge Tjoflat,
concluded that dismissal of this case was required under Younger v. Harris, 401
U.S. 37 [91 S.Ct. 746, 27 L.Ed.2d 669] (1971), and O'Shea v. Littleton, 414

U.S. 488 [94 S.Ct. 669, 38 L.Ed.2d 674] (1974), lest Georgia's state courts be
placed, potentially, under the direct supervision of this Court.
9

On remand from the Circuit's second opinion in this case, this Court concluded
that Defendant's renewed motion to dismiss must denied under the law of the
case doctrine. This Court reasoned that:

10 soundly reversing this Court, denying rehearing, denying rehearing en banc in

"by
the face of Judge Edmondson's dissent, and denying Defendant's Motion to Stay the
Mandate pending the Supreme Court's disposition of Defendant's petition for a writ
of certiorari, the Eleventh Circuit gave this Court the clear message that this case
should be heard."
11

Order of the Court dated July 10, 1990, at 11. This Court also made clear,
however, that had it not considered itself bound by the law of the case, it would
have abstained from the hearing the case. Id. Lastly this Court certified its
disposition of the case for immediate appeal under 28 U.S.C. 1292(b).

12

The Appellate Court's third opinion in this case upheld this Court's grant of
appellate certification. See, Harris v. Luckey, 918 F.2d 888 (11th Cir.1990)
("Luckey III"). The Court pointed out that an immediate appeal was appropriate
in light of the fact that "there are substantial grounds for [the defendant's]
contention that the district court was not bound by the law of the case to reject
the abstention doctrine of Younger." Id., 918 F.2d, at 893.

13

An immediate appeal was had and the Appellate Court reversed this Court for
the second time. See, Luckey v. Miller, 929 F.2d 618 (1991) ("Luckey IV"). In
its fourth opinion in the instant case, the Appellate Court held that the law of
the case doctrine did not preclude consideration of the abstention doctrine since
it was unclear whether such arguments had been previously considered. The
Appellate Court found first that the arguments in favor of abstention were not
raised by the Defendants prior to the Circuit's opinion in Luckey I, and were not
addressed by the Appellate Court for that reason. Second, the Court found that
since the Appellate Court's second opinion, Luckey II, denied en banc review
without specifying any reasons for that denial, whether the Court had
considered the abstention arguments raised by Judge Edmondson in his dissent
could not be determined. The Appellate Court in Luckey IV concluded,
therefore, that the law of the case doctrine did not bar consideration of the
abstention doctrine and the case was remanded in order that such arguments
could be considered.1

B. Plaintiff's Complaint
14

Plaintiffs' Complaint asserts a class action on behalf of "all individuals who are
or will in the future be adversely affected by the unconstitutional practices of
the indigent defense system within Georgia." They claim that Georgia's
indigent defense system "is inherently incapable of providing constitutionally
adequate services," and that the system therefore "violates the Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution." Plaintiff's seek
the following relief:

(1) a court order providing for an indigent defense system that;

15
(a) furnishes counsel, if requested, at probable cause determinations,
16
(b) furnishes speedy appointment of counsel for critical stages,
17
(c) furnishes adequate services and experts, and
18
(d) furnishes adequate compensation for counsel
19
20 a court order that "uniform standards be promulgated and adopted governing the
(2)
representation of indigent consistent with the judgment in this case;"
(3) monitor the implementation of those standards; and
21
(4) award attorney's fees and other proper relief.
22
23

Plaintiff's complaint has been upheld in the face of challenges based on

Fed.R.Civ.P. 12(b)(6), and the Eleventh Amendment. As pointed out above,
this complaint now faces a challenge based on the abstention doctrine of
Younger v. Harris, 401 U.S. 37 [91 S.Ct. 746, 27 L.Ed.2d 669] (1971).
C. Abstention

24

In Younger v. Harris, 401 U.S. 37 [91 S.Ct. 746, 27 L.Ed.2d 669] (1971), the
United States Supreme Court found that a "basic doctrine of equity
jurisprudence [is] that courts of equity should not act, and particularly should
not act to restrain a criminal prosecution, when the moving party has an
adequate remedy at law and will not suffer irreparable injury if denied equitable
relief." Id., at 43-44 [97 S.Ct. at 750]; See, 28 U.S.C. 2283. The Court
explained that abstention from interference in state criminal proceedings served
the vital consideration of comity between the state and national governments.

"The
25 concept does not mean blind deference to 'State's Rights' any more than it
means centralization of control over every important issue in our National
Government and its courts. The Framers rejected both these courses. What the
concept does represent is a system in which there is sensitivity to the legitimate
interests of both State and National Governments, and in which the National
Government, anxious though it may be to vindicate and protect federal rights and
federal interests, always endeavors to do so in ways that will not unduly interfere
with the legitimate activities of the states."
26

Id., at 44 [91 S.Ct. at 750-51].

27

The doctrine was further elaborated upon in O'Shea v. Littleton, 414 U.S. 488
[94 S.Ct. 669, 38 L.Ed.2d 674] (1974). In O'Shea the plaintiffs sought an
injunction aimed at controlling or preventing the occurrence of specific events
that might take place in the course of future criminal trials. The Court held that;

28 federal court should not intervene to establish the basis for future intervention that
"a
would be so intrusive and unworkable.... The objection is to unwarranted
anticipatory interference in the state criminal process by means of continuous or
piecemeal interruptions of the state proceedings by litigation in the federal courts;
the object is to sustain '[t]he special delicacy of the adjustment to be preserved
between federal equitable power and State administration of its own law."
29

Id., at 500 [94 S.Ct. at 678], quoting, Stefanelli v. Minard, 342 U.S. 117, 120
[72 S.Ct. 118, 120, 96 L.Ed. 138] (1951).

30

In Luckey II, Judge Edmondson found that the Supreme Court's decision in
O'Shea mandated a dismissal of the instant complaint pursuant to Fed.R.Civ.P.
12(b). His dissent, joined by three other judges, also found that under binding
Eleventh Circuit authority, the Plaintiff's complaint should be dismissed on
abstention grounds. See, Luckey II, 896 F.2d, at 481-82; See also, Gardner v.
Luckey, 500 F.2d 712 (5th Cir.1974); Tarter v. Hury, 646 F.2d 1010 (5th Cir.
Unit A 1981). Likewise in its order dated July 10, 1990, this Court made it
clear that had it not considered itself bound by the law of the case doctrine this
Court would have dismissed the present action under O'Shea and other
Eleventh Circuit authority. See, order dated July 10, 1990, at 11.

31

The Appellate Court's opinion in Luckey IV impacted this Court's analysis of

the pending motion to dismiss in two ways. First, the opinion clearly indicated
that the Circuit's previous opinions had not passed on the merits of the
Defendant's abstention defense.2 Luckey IV, 929 F.2d, at 622. Second, the

opinion in Luckey IV made it clear that the law of the case doctrine was no bar
to dismissal under the abstention doctrine. See, Luckey IV, 929 F.2d, at 623.
Consequently, given that this Court has already expressed its view of the
pending motion, and that the obstacles this Court considered to prevent an
implementation of that view have been removed, the Plaintiffs' burden in
opposing the pending motion is, basically, to convince this Court that it should
change its view. The Plaintiffs have failed to do so.
32

Plaintiffs' first argument against dismissal of this action is that Younger is no

bar to all federal injunctive relief even if the same subject is actually, rather
than potentially, in state court litigation. Plaintiffs' contend that they do not seek
to contest any criminal conviction, nor to restrain any criminal prosecution, and
that they seek only to have this Court consider systemic issues which cannot be
raised in any individual case. Plaintiffs argue that Younger only bars federal
courts from restraining ongoing state court prosecutions and does not bar the
prospective relief they seek.

33

Plaintiffs' legal authority for this position is tenuous. The two district court
opinions upon which rely, Westin v. McDaniel, 760 F.Supp. 1563
(M.D.Ga.1991) and R.C. v. Hornsby, no. 88-d-1170-n, M.D.Ala. April 19,
1989, are distinguishable on their facts. In Westin, for example, the Court ruled
on alternative grounds that: (1) there was no state court action pending, and (2)
even if there was, the claim would fall within the bad faith exception to the
Younger abstention doctrine. See Westin, 760 F.Supp., at 1568, 1572. R.C. v.
Hornsby, supra, is also distinguishable. In R.C., a case in which the plaintiff
sought to alleviate systemic constitutional deprivations in the foster care system
for emotionally disturbed children, the Court expressly found that there was no
state court proceedings which would be interfered with, and that the state's
juvenile courts lacked authority to consider the issues raised by the complaint.
In the instant case, however, a decree of the sort requested by the plaintiffs
would, inevitably, interfere with every state criminal proceeding.3 Moreover, in
the instant case, the state courts do have the authority to consider the claims
raised by the plaintiffs. See, Luckey II, (Edmondson dissenting), 896 F.2d, at
482.

34

Moreover this Court cannot concur in the Plaintiff's characterization of their

claims. Although it is true that Plaintiffs do not seek to contest any single
criminal conviction nor restrain any individual prosecution, it is nonetheless
clear that plaintiff's intend to restrain every indigent prosecution and contest
every indigent conviction until the systemic improvements they seek are in
place. The fact no individual case is contested functions only to set up an empty
syllogism by which plaintiffs may argue that their intent is not to interfere with

pending prosecutions.
35

In any case, the thrust of Judge Edmondson's opinion, as well as this Court's
previous decision, was on the analysis provided by the Supreme Court in
O'Shea v. Littleton, 414 U.S. 488 [94 S.Ct. 669, 38 L.Ed.2d 674] (1974). This
Court was specifically concerned with the prospective effect of the decree
sought by the plaintiffs. As this Court pointed out:

36
"[t]he
relief sought by the plaintiffs would require this Court to force the state to
promulgate uniform standards relating to various stages of prosecutions and also to
monitor those standards. If the monitoring is to be effective, this Court will have to
review ongoing state proceedings and may have to interrupt them if the standards are
not being followed. Even if the Court merely required periodic reporting, such action
on the part of a federal court strikes at the heart of the prohibitions that are
embedded into constitutional law by Younger and its progeny. See, O'Shea, 414
U.S., at 501 [94 S.Ct. at 679] (periodic reporting "would constitute a form of
monitoring of the operation of state court functions that is antipathetic to established
principles of comity")."
37

See, Order dated July 10, 1990, at 10.

38

Plaintiffs do not shrink from the task of attempting to distinguish their claims
from those before the Court in O'Shea. Plaintiffs point out that in O'Shea any
court order implementing the relief requested would have necessarily involved
constant outside supervision. Plaintiffs contend that in the instant case they
seek merely an order which would require the Defendants to reform their own
system, and not to impose ongoing review from the outside.

39

Plaintiffs bolster this argument by presenting a number of possible solutions to

the problem of creating a remedy, inoffensive to the comity concerns of
Younger and O'Shea, should liability be found. First, a reporting requirement, if
required would not be unduly burdensome in light of the fact that Georgia has
already instituted a system of reporting as a precondition to state grants.4
Second, any relief against the Defendant Governor would not impact the
concerns expressed in Younger and O'Shea since the onus would be on the state
executive rather than the judiciary to comply. Third, any other relief would not
require intervention in ongoing prosecutions.5 Equitable relief such as a
declaratory judgment could be imposed and the state Defendants left to their
own resources in formulating a means for compliance. Likewise, a simple "best
efforts" decree would leave the Defendants similar autonomy in fashioning
their means of compliance.6

40

Plaintiffs conclude that since this Court would have a host of remedies which
would not offend O'Shea by establishing the basis for future intervention in
Georgia's criminal justice system, the bar of O'Shea does not apply. See,
Gerstein v. Pugh, 420 U.S. 103 [95 S.Ct. 854, 43 L.Ed.2d 54] (1975); Tucker v.
City of Montgomery Board of Commissioners, 410 F.Supp. 494
(M.D.Ala.1976).

41

This Court is unable to agree with the Plaintiffs' argument because, in the view
of this Court, even the limited decrees set forth above would inevitably set up
the precise basis for future intervention condemned in O'Shea. Such a case
cannot be decided in a vacuum, and the potential enforcement difficulties of
any order reforming such an integral aspect of a state criminal justice process as
the indigent defense system would be significant.

42

Plaintiffs contend that the Court should not anticipate, at this stage of the
litigation, that it would be forced to enter relief which would offend the
principles set forth in O'Shea. They point out that the Defendants, in effect, ask
this Court to assume in advance that they will flout any order which the Court
may issue. Plaintiffs argue that such hypothesized recalcitrance cannot defeat
Plaintiff's claim for relief. In the view of this Court, however, hypothesized
recalcitrance is the precise inquiry demanded by O'Shea. As the Court in
O'Shea explained,

43 question arises of how compliance might be enforced if the beneficiaries of the

"the
injunction were to charge that it had been disobeyed. Presumably any member of
respondent's class who appeared as an accused before petitioners could allege and
have adjudicated a claim that petitioner's were in contempt of the federal court's
injunction order, with a review of an adverse decision in the Court of Appeals and,
perhaps in this court."
44

O'Shea, 414 U.S., at 501-02 [94 S.Ct. at 679]. Likewise in his dissent Judge
Edmondson noted,

45 a state court judge does not obey a district court's injunction, are we willing to jail
"If
the state court judge for contempt? Avoidance of this unseemly conflict between
state and federal judges is one reason for O'Shea and Younger.
46

Luckey II, 896 F.2d, at 482. This Court is constrained, therefore, to focus on
the likely result of an attempt to enforce an order of the nature sought here. It
would certainly create an awkward moment if, at the end of protracted
litigation, a compliance problem arose which would force abstention on the
same ground that existed prior to trial.

47

Plaintiffs argue, finally, that even if the entry of a declaratory judgment or best
efforts decree should lay the groundwork for a future request for more detailed
relief, that abstract possibility is insufficient to require this Court to deny all
relief. Again, this Court must disagree. In the view of this Court, laying the
groundwork for a future request for more detailed relief which would violate
the comity principles expressed in Younger and O'Shea is the precise exercise
forbidden under the abstention doctrine. O'Shea, 414 U.S., at 500 [94 S.Ct. at
678].

48

Although the Court admires the efforts put forth by the Plaintiffs in an attempt
to distinguish their claims from those in O'Shea, this Court cannot concur in
their conclusions. Consequently the view of the law expressed by this Court in
its order dated July 10, 1990, remains this Court's view of the law today. This
Court does not believe that it should exercise its equitable jurisdiction to hear
this case.

49

Accordingly, based on the above, Defendant's Motion to Dismiss is

GRANTED.

50

IT IS SO ORDERED, this the 16th day of December 1991.

/s/ Harold L. Murphy

51
UNITED STATES DISTRICT JUDGE

An analysis of the Circuit's handling of this case might indicate that the Circuit
has determined that this Court should simply enter an order dismissing this case
under the abstention doctrine. Four judges have clearly stated that this would be
their conclusion. Moreover, in its last order this Court clearly indicated its
intention to dismiss this action on abstention grounds had it not considered
itself bound by the law of the case. The Circuit has now removed the obstacle
of the law of the case without comment as to this Court's alternative holding.
An argument exists, therefore, that the Circuit approves of this Court's alternate
holding since the Circuit did nothing to dissuade this Court from its clearly
expressed course

Consequently, by this Court's count, there are four Circuit Court Judges who
have accepted the Defendant's argument, and none who explicitly reject it

Plaintiffs admit, by implication, that every criminal prosecution of an indigent

person in Georgia would be restrained, potentially, by a finding of liability in

this case. Plaintiff's argue that no such order is necessarily required, "unless
Defendants defaulted in meeting Constitutional requirements...." Plaintiff's
Supplemental Brief Opposing Dismissal, page 17
4

Plaintiffs contend that since such reports, at least in some form, are being
made, any Court order would not need to require them to be made. Moreover,
since the reports are made by state court administrators, any reporting order
would not need to be directed at the judicial officer. In the view of this Court,
however, the degree of burden imposed by such a requirement is only one
factor underlying the concept of comity. The real question is whether the Court
should force such reports to be made, not how difficult it would be to make
them

Plaintiffs contend that all relief other than a reporting requirement would not be
offensive to the comity concerns of Younger and its progeny

Plaintiffs contend, basically, that leaving the means of compliance to the state's
initiative would avoid any comity problems with entering a finding of liability.
Plaintiffs point out that any stronger action would not be necessary unless the
Defendants failed to take appropriate action. As explained infra, however, this
Court does not believe that it can extricate itself from the problems of enforcing
a decree of the nature sought so easily