Manns, Jr. v. Hon. Lawrence Koontz Brief for Plaintiff-Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT 

NO. 71-1458

SPENCER MANNS, JR., et al.,
Plaintiffs-AppeHants, 

v.
THE HONORABLE LAWRENCE L. KOONTZ, 
et al.,

Defendants-Appellees.

On Appeal from the United states District Court 
for the Western District of Virginia

BRIEF FOR PLAINTIFFS-APPELLANTS

RALPH W. BUXTON
The Insurance Building 
10 South Tenth Street 
Richmond, Virginia

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
JONATHAN SHAPIRO 
R. SYLVIA DREW

10 Columbus circle
New York, New York 10019

Attorneys for Plaintiffs-Appellants



INDEX

Issues Presented on Appeal 
Statement of the Case
Statement of Facts ......
ARGUMENT

Page
1

2
4

Introduction

I. THE DENIAL OF THE RIGHT TO A JURY TRIAL 
IN THE JUVENILE AND DOMESTIC RELATIONS 
COURT UNDER VIRGINIA LAW .............
A. The Virginia Statutory Scheme
B. The Denial of a Jury Trial in Juvenile

Court Denied Plaintiff-Appellant the 
Rights Guaranteed by the Sixth and 
Fourteenth Amendments ........

II. THIS CASE FALLS WITHIN THE EXCEPTION
RECOGNIZED IN YOUNGER v. HARRIS SO THAT 
THE INTERVENTION OF THE FEDERAL COURTS IS PROPER ........

111* ™  THE ALTERNATIVE, DECLARATORY AND INJUNCTIVE
E IEF SHOULD HAVE BEEN GRANTED PROSPECTIVELY 

ON BEHALF OF THE CLASS PLAINTIFF REPRESENTS....
CONCLUSION
CERTIFICATE OF SERVICE

6

7
7

9

11

15
18
19

Table of cases

Baldwin v. New York, 399 U.S. 66 (1970) 
Boyle v. Landry, 401 U.S. 77 (1971)
Brown v. Epps, 91 Va. 726, 21 S.E. 119 (1895) .
Callan v. Wilson, 127 u.S. 540 (1888) 
Cypress v. Newport News Hospital Ass'n 

375 F.2d 648 (4th Cir. 1967)
11, 12, 15



Page
Davis v. Francois, 395 F.2d 730 (5th Cir. 1968).......  7
Duncan v. Louisiana, 391 u.S. 145 (1968)........ 9, 11* 15
Evans v. City of Richmond, 210 Va. 403, 171 s.E.2d 247

Gaskill v. Commonwealth, 206 Va. 486,
144 S.E.2d 293 (1965) ...........................  9, i2

Hulett v. Julian, 250 F. Supp. 208 (M.D. Ala.
1966) ..........................................  12, 13

In re Burrus, ____ u.S. . 39 U.S.L.Week
4777 (1971) ........... 77TT77........

Jenkins v. United Gas Corp., 400 F.2d 28 
(5th Cir. 1968) ..................... 17

McKeiver v. Pennsylvania, U.S.
39 U.S .L. Week 4777 (1971) ___.....................

Perez v. Ledesina, 401 U.S. 82 (1971) ...............
Samuels v. Mackell, 401 U.S. 66 (1971) ............  6,
Sweeten v. Sneddon, 324 F. Supp. 1094 (D. Utah 1971)___
Turney v. Ohio, 273 U.S. 510 (1927) ....................
Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966),

aff’d. 390 U.S. 333 (1968) ..........................
Wood v. Ross, 434 F.2d 297 (4th Cir. 1970) .!!!!!!!!!!!!
Younger v. Harris, 401 U.S. 37

<1971) ...........................  3, 6, 11, 13, 14,

9
6

16
13
12

17
17

16

Statutes:
28 U.S.C. 
28 U.S.C. 
28 U.S.C. 
28 U.S.C. 
28 U.S.C. 
42 U.S.C.

§1443 ........
§1653 ........
§§2201 and 2202
§2254 ........
§2283 ........
§1983 ........

2
17
2
17
12
2

Virginia code Annotated: 
Title 16.1, §158(7) .
Title 16.1, §214 ___
Title 16.1, §216 ___
Title 18.1, §14 ....

ii



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

NO. 71-1458

SPENCER MANNS, JR., et al.,
Plaintiffs-Appellants,

v .

THE HONORABLE LAWRENCE L. KOONTZ et al.,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Western District of Virginia

BRIEF FOR PLAINTIFFS-APPELLANTS 

Issues Presented on Appeal

(1) Whether the district court was in error in dismissing, 
on the ground that it was precluded from interfering with pending 
state criminal prosecutions, this class action complaint for 
declaratory and injunctive relief challenging a Virginia Statute 
that denied the right to jury trial?

(2) Whether the Virginia Statutes involved in this case 
denying the right to a jury trial in misdemeanor cases involving 
a possible penalty of up to one year in jail violate the Sixth 
and Fourteenth Amendments to the Constitution of the United
States?



Statement of the Case

This action was brought pursuant to 42 U.S.C. §1983, 
which authorizes actions for redress of violations of consti­
tutional rights. The jurisdiction of the court below was 
invoked under 28 U.S.C. §1443(3) and (4). The action sought 
a declaratory judgment, as authorized by 28 U.S.C. §§2201 and 
2202, that Title 16.1, §158(7) of the Virginia Code Annotated 
(Repl. Vol. 1960) violates the Sixth and Fourteenth Amendments 
to the Constitution of the United States in that it allows the 
criminal trial of adults in the juvenile and domestic relations 
court without a jury even though they are charged with offenses 
which carry maximum possible sentences of more than six months 
in jail. The action also sought a permanent injunction against
the further enforcement of the statute (Amended Complaint,

1/
pp. 1, 3, 4-5).

The action was brought against the Honorable Lawrence L. 
Koontz, individually and in his capacity as judge of the Juvenile 
and Domestic Relations Court of Roanoke, Virginia; Samuel A. 
Garrison, III, individually and in his capacity as the 
Commonwealth Attorney for Roanoke, Virginia; and the Honorable 
Ernest W. Ballou, individually and in his capacity as judge of

1/ References throughout this brief are to the original record. 
Counsel for appellants and appellees have jointly moved this Court 
for leave to proceed on the original record filed in this Court.

2



the Hustings Court of Roanoke, Virginia (Am. Compl., p. 2). 
Plaintiff, appellant here, Spencer Manns, Jr., brought the 
action in his amended complaint on his behalf and on behalf 
of that class of persons who have been and will be in the future 
faced with non-jury criminal trials in the Juvenile and Domestic 
Relations Court under the challenged statute (Id., 2-3). At 
the time of the filing of the original complaint, January 18, 
1971, plaintiff Manns himself was awaiting trial in the Juvenile 
and Domestic Relations Court in the City of Roanoke. At the 
time his amended complaint was filed he had been tried in the 
Juvenile and Domestic Relations Court, had appealed, and was 
waiting a trial c3e novo in the Hustings Court of Roanoke.

Since there is no dispute as to the facts in this case, 
the district court rendered its decision on the basis of the 
complaint, the amended complaint, and the motion to dismiss 
filed by the defendants, and on the basis of memoranda of law 
filed by both parties. The district court, in its opinion 
rendered on April 8, 1971, did not reach the merits of the
challenge of the constitutionality of the Virginia Statutes, 
nor did it decide whether the action could be properly main­
tained as a class action. Rather, it held that the recent 
decisions of the United States Supreme Court in Younger v. Harris 
401 U.S. 37 (1971), and companion cases, precluded the federal 
courts from intervening either by injunction or declaratory

3



relief in a pending state criminal action (Opinion and Judgment, 
pp. 2-3). Thus, the complaint was dismissed for failure to 
state a claim upon which relief could be granted. A timely 
notice of appeal to this Court was filed.

Statement of Facts

As stated above, the facts are uncontradicted and can 
be briefly stated. in his original complaint, plaintiff Manns 
alleged that he was charged with six separate misdemeanors, 

involving juveniles. These included charges of exposing 
juveniles to "vicious and immoral influences" under Virginia 
Code Annotated, Title 18.1, §14. Each of the six offenses 
carried a maximum penalty of one year in jail and a $1,000 fine 
(Complaint, p. 2). Under Title 16.1, §158(7), the state 
juvenile and domestic relations courts have original and 
exclusive jurisdiction over the offenses with which plaintiff 
was charged.

The complaint, which was filed on January 18, 1971, 
alleged that plaintiff was to be tried on January 20, 1971 
(Compl., p. 2). On January 11, 1971, plaintiff had moved the
Juvenile and Domestic Relations Court that he be tried by jury 
(Ibid). Judge Koontz, a defendant in this action, denied the 
motion and set six non-jury trials for January 20. Plaintiff 
then filed the present action and sought a preliminary injunction 
against the pending trials on January 20. This injunction was

4



denied by the district court on January 18, 1971, and the 
trials proceeded on the 20th. Plaintiff was tried on five 
misdemeanor charges, a sixth one being dropped. He was 
convicted on three of the five charges and received two 
six-month sentences and one 12-month sentence, plus a total of 
$1,000 in fines.

Pursuant to Title 16.1, §214 of the Virginia Code, 
plaintiff noted an appeal for the three convictions to the 
Hustings Court for the City of Roanoke, Virginia. Under 
Vii-ci  law plaintiff was entitled to a trial de novo in the 
Hustings Court, at which time he did receive a trial by jury. 
Again, because of the denial of preliminary injunctive relief 
i’y the district court, the trials took place in the Hustings 
Court and plaintiff was again convicted. Those convictions are 
presently on appeal to higher Virginia courts.

5



ARGUMENT

Introduction

This case presents the question of the effect of the
recent Supreme Court decisions in Younqer v. Harris, 401 U S

2/
37 (1971), and companion cases, on the power of the federal 
courts to grant declaratory and/or injunctive relief against 
the operation of an unconstitutional state criminal statute.
The district court held that Younqer et al. erected an absolute 
bar to its exercise of such power.

For reasons that will be discussed at length plaintiff- 
appellant urges that the court below erred; rather, the court 
should have acted for either of two reasons. First, this case 
falls within the exception recognized in Younger.- i.e., it 
presents 'extraordinary circumstances in which . . .  irreparable 
injury can be shown even in the absence of the usual prerequisites 
of bad faith and harassment," because it involves a statute that 
is flagrantly and patently violative of express constitutional 
prohibitions . . .  in whatever manner and against whomever an 
effort might be made to apply it'" (401 U.S. at 53-54), and 
because there does not exist a state remedy by which this 
unconstitutionality may be corrected. Secondly, since this case

2/ Samuels v. Mackell, 401 U.S. 66 (1971); Boyle v. Landry. 
401 U.S. 77 (1971); and Perez v. Ledesina. 401 U.S. 82 (1971).

6



was brought as a class action on behalf of those persons who 
in the future will be subjected to trials without juries, 
the court could have acted prospectively without interfering 
with any pending prosecutions.

In order to put these contentions into the proper 
context, it is first necessary to describe the statutory scheme 
involved and the reasons why it is unconstitutional since its 
peculiar nature gives rise to the exception to the Younger rule.
In this Court's disposition of this appeal we suggest that it 
would be appropriate either to decide the constitutional issue 
here (see, e.g., Davis v. Francois, 395 F.2d 730 (5th Cir. 1968)), 
or to remand to the district court for a decision on the merits 
in the first instance.

I.

THE DENIAL OF THE RIGHT TO A JURY TRIAL 
IN THE JUVENILE AND DOMESTIC RELATIONS 
COURT UNDER VIRGINIA LAW.

A. The Virginia Statutory Scheme

Title 16.1, §158 of the Code of Virginia defines the
jurisdiction of the juvenile and domestic relations courts.
Subsection (7) gives those courts jurisdiction over:

The prosecution and punishment of persons 
charged with ill-treatment, abuse, 
abandonment or neglect of children or with 
any violation of law which causes or tends 
to cause a child to come within the purview 
of this law. . . .

7



Thus, in addition to the usual jurisdiction over juveniles 
charged with violating the criminal law, the juvenile courts also 
have the power to prosecute adults charged with certain crimes. 
Plaintiff-appellant was charged with violating six misdemeanors 
involving juveniles, including §18.1-14 of the Virginia Code,
which prescribes, inter alia, subjecting any juvenile to

3/
vicious or immoral influences. Each of the charges carried 
a maximum penalty of one year in jail and $1,000 fine.

Under §16.1-214, Code of Virginia, after an adult has been 
so convicted he may appeal in ten days to the Hustings Court.
There he receives a trial d<e novo with the right to a jury trial.
If the Hustings Court affirms the conviction it may remand the 
adult to the juvenile court for its supervision and care and 
the defendant remains under the jurisdiction of the juvenile 
court "in the same manner as if such court had rendered the 
judgment in the first instance." §16-214. The pendency of 
an appeal or writ of error to review the judgment of the juvenile 
court in the case of an adult suspends the judgment order of 
that court. However, the juvenile court may require an appeal 
bond in an amount it determines. §16.1-216, as amended, 1966.

Thus, the Virginia system allows trials and convictions 
without a jury for crimes carrying sentences of more than six 
months, puts the burden on the person so convicted to take an 
appeal and obtain a trial cle novo, and allows the juvenile court 
to require an appeal bond during the pendency of those proceedings.

3/ According to the complaint, this involved exposing
juveniles to certain political, sociological, and economic 
written matter (Compl., pp. 2-3).

8



B. The Denial of a Jury Trial in Juvenile Court Denied Plaintiff- 
Appellant the Rights Guaranteed by the Sixth and Fourteenth 
Amendments.

It is now clear that the Constitution requires that a
jury trial be provided to all adults charged with non-petty
offenses, that is, crimes for which the penalty is more than
six months' imprisonment. Duncan v. Louisiana, 391 U.S. 145

4/
(1968); Baldwin v. New York, 399 U.S. 66 (1970). Thus, if
in the absence of an appeal and a trial de novo with a jury 
there would be no question but that plaintiff-appellant's 
constitutional rights have been denied.

In cases involving trials in other than juvenile courts 
the Virginia courts have indeed relied on the existence of a 
jury trial de novo to hold that the denial of the right at the 
original trial level does not violate the Constitution. See 
Gaskill v. Commonwealth, 206 Va. 486, 144 S.E.2d 293 (1965).
The reasoning used is that the trial de novo has the effect of 
annulling the judgment of the trial judge ". . .as completely 
as if there had been no previous trial." Evans v. City of 
Richmond. 210 Va. 403, 171 S.E.2d 247 (1969) (holding that it

4/ The recent decisions of the Supreme Court holding that 
jury trials of juveniles in juvenile court are not constitutionally 
mandated do not apply here. Clearly, the court based its 
decision on the uniquely rehabilitative nature of juvenile 
proceedings. Its decisions do not in any way sustain the denial 
of a jury trial in a criminal proceeding, where either an adult 
or a juvenile is involved, simply because it is held in a court 
that also has jurisdiction over the usual juvenile-type proceedings. 
McKeiver v. Pennsylvania. in re Burrus, U.S.
39 U.S.L. Week 4777 (1971).

9



was not double jeopardy to impose a higher sentence following 
the trial de novo, because the first trial was a nullity).

Plaintiff urges, however, that such a conclusion is clearly 
in error. As long ago as 1888 the Supreme Court rejected 
precisely the same argument and held that the denial of a jury 
trial in the police court of the District of Columbia violated 
the Sixth Amendment, despite the right to an appeal and a jury 
trial de novo in a higher court. Callan v. Wilson, 127 U.S.
540 (1888). in Callan, the Court was faced with a statutory 
scheme strikingly similar to the Virginia one at issue here.
It provided for an initial trial without a jury; the right to 
an appeal to the District Supreme Court; the necessity for 
supplying an appeal bond to be approved by the trial judge; the 
staying of all proceedings in the police court during the 
appeal when the bond was given; and the right to a trial by 
jury in the supreme court (127 U.S. 551-552). Nevertheless, 
the Court held:

But the fact remains that the accused may, 
under the statute, be tried in the court of 
original jurisdiction, upon the issue of 
guilt or innocence; and by its judgment, 
unless he gives security for his appearance 
in another court, he may be deprived of his 
liberty. The police court is not, in such 
cases, an examining court merely, but a 
trial court, in the fullest sense of those 
words. 127 U.S. at 551-552.

The court might also have pointed out that the burden was 
placed on a defendant to take an appeal; otherwise he stood 
convicted of a crime.

10



The decision in Callan was based on the Sixth Amendment. 
Because of Duncan v. Louisiana, supra, that amendment's 
protections have been applied to the states, and Callan 
controls. Thus, it is clear that the Virginia statutory 
scheme violates the due process clause of the Fourteenth 
Amendment.

II

THIS CASE FALLS WITHIN THE EXCEPTION 
RECOGNIZED IN YOUNGER V .  HARRIS SO THAT 
THE INTERVENTION OF THE FEDERAL COURTS 
IS PROPER.

As noted above, the district court's decision was based 
on its reading of Younger v. Harris. 401 U.S. 37 (1971), to the 
effect that federal courts were barred from intervening in 
state court prosecutions. As also noted, however, the Supreme 
Court in that decision recognized that there could be exceptions 
to the general rule under unusual circumstances, even where 
no allegations were made that the prosecution was in bad faith. 
Plaintiff—appe1lant contends that this case presents such an 
exception.

First. Younger and its companion cases were all based 
on the assumption that the federal constitutional challenge 
could be raised and vindicated in the state courts. This 
simply is not the case with the claim involved here. In the 
cases cited in Part I, supra, the Supreme Court of Appeals of

11



Virginia has refused to uphold the claim on appeal on the ground 
that once a trial d_e novo with a jury has been held any defect 
was cured. Gaski11 v. Commonwealth, 206 Va. 486, 144 S.E.2d 293 
(1965); see also Evans v. City of Richmond, 210 Va. 403, 171 S.E.2d
247 (1969).

Because of the rationale of the Virginia court's decision, 
habeas corpus or other collateral remedies are also not available 
Thus, in Gaski11, the court cited with approval the decision 
in Brown v. Epps, 91 Va. 726, 21 S.E. 119 (1895), a habeas
corpus action brought prior to a trial de novo challenging the

5/
validity of the original trial without a jury. Therefore, 
under Virginia law there exists no vehicle by which the 
constitutional issue can be raised and decided.

It was precisely these considerations that led a 
federal district court, in a case raising constitutional 
challenges to a justice of the peace proceeding, to hold that 
sufficient irreparable injury was established to avoid the bar 
of 28 U.S.C. §2283. Hulett v. Julian, 250 F. Supp. 208 
(M.D. Ala. 1966). In Hulett the challenge was to a system 
whereby the justice of the peace was paid out of fines 
collected only if there was a conviction, in violation of 
Turney v. Ohio, 273 U.S. 510 (1927). Under Alabama law, just 
as in Virginia, after the initial trial a defendant had the 
right to a trial de novo, without the constitutional defect, 
that had the effect of nullifying the original trial. Also, 
just as in Virginia, there was no available state collateral

5/ It should be noted that Brown v. Epps was decided in spite 
of Callan v. Wilson, 127 U.S. 540 (1888), which was a habeas 
action brought between the first trial and the trial de novo.

-  12 -



remedy under Alabama law. Stating that, "we do not think that 
the plaintiff can be recognized to submit to an unconstitutional 
trial as a prerequisite to being accorded a valid trial de novo," 
the court concluded that since there was no adequate remedy 
under state law, " it is the duty of this Court to take 
jurisdiction and decide the question of federal constitutional 
law." 250 F. Supp. at 209, 210. The court enjoined the justice 
of the peace proceedings.

In a more recent case decided after Younger, another 
federal district court has taken a similar approach and inter­
vened in a city court proceeding to guarantee the federal 
right to counsel. Sweeten v. Sneddon, 324 F. Supp. 1094 
(D. Utah 1971). in Sweeten the plaintiff was charged with a 
misdemeanor in city court, but was denied appointed counsel 
even though he was indigent. The court found irreparable 
injury within the Younger exception because he faced immediate 
revocation of parole upon conviction and such revocation could 
not be subsequently cured. 324 F. Supp. at 1103. Moreover, 
the court found that the threat of being tried without counsel 
and its immediate consequences could not be cured in state 
court, since plaintiff's request for appointment of counsel had 
already been denied. id. at 1104.



Plaintiff appellant urges that the reasoning of these 
decisions is correct and is applicable in the present case.
The Virginia statutory scheme subjects him to an unconstitutional 
procedure. The violation of his rights is immediate and 
irreparable since there is no way under Virginia law that it 
can be remedied. Thus, only by the intervention of the federal 
courts in the criminal prosecution itself can his constitu­
tional right to a jury trial be protected. Quite simply put, 
if this Court does not intervene, that right is lost forever.-

This case also comes within another aspect of the exception 
to the Younger rule recognized by the Supreme Court. As pointed 
out above, the Court stated that federal intervention would be 
possible where a state statute is "flagrantly and patently 
violative of express constitutional prohibitions" in every 
instance of its application. 401 U.S. at 53-54. This is 
clearly the situation here. in every trial of adults for 
crimes in the juvenile courts in Virginia the right to a jury 
trial is denied— neither the statutes, practice under them, 
nor the decisions of the Virginia courts allow for any exceptions.

6/ _ The constitutional rights here involved cannot be
vindicated by an ultimate appeal to the Supreme Court of the 
United States. Since Virginia law offers no collateral remedy 
that can be interposed before the trial de novo, there would be 
no way the Supreme Court could retrospectively correct the chal­
lenged denial by review on certiorari.

14



The statute, for the reasons given in Part IB, supra, is 
patently violative of the express constitutional right to trial 
by jury as enunciated in Duncan v. Louisiana, supra, and 
Ca1lan v. Wilson, supra. The issue raised is clear; it is 
not a matter of construction or application of, for example, 
a statute that arguably impinges on First Amendment rights.

Thus, for the foregoing reasons, the district court was 
in error in not granting the declaratory and injunctive relief 
requested.

Ill

IN THE ALTERNATIVE, DECLARATORY AND INJUNCTIVE RELIEF 
SHOULD HAVE BEEN GRANTED PROSPECTIVELY ON BEHALF OF THE 
CLASS PLAINTIFF REPRESENTS.

The discussion in Part II, supra, of course goes to the 
correctness of the district court's refusal to halt the trial 
of plaintiff in the juvenile court before it took place. 
Following that trial, plaintiff amended his complaint to add 
a class action allegation. Thus, he represented not only 
himself, but that class of persons who were or would be in the 
future threatened with prosecution without a jury in violation 
of their constitutional rights. Thus, the court below could 
have ruled on the merits of the claim and issued an order that 
^ould have been prospective only and that therefore would not 
have interfered with any existing state prosecutions. The

15



court, however, declined to do so, also relying on Younger v 
Harris.

Plaintiff-appellant urges that this reliance was in
error, since Younger and its companion cases explicitly left
open the issue of whether a federal court could prospectively
declare a state statute unconstitutional and enjoin its future
enforcement. Thus, in Younger, the court stated:

We express no view about the circumstances 
under which federal courts may act when 
there is no prosecution pending in state 
courts at the time the federal proceedings is 
begun. 401 U.S. at 37.

See also Samuels v. Mackell, 401 U.S. 66, 73-74 (1971).
The present case comes within the language of Younger. 

Although when the action was originally filed a prosecution 
was pending in the juvenile court, this was no longer the case 
at the time the amended complaint was filed, seeking relief 
against future prosecutions of plaintiff and persons in his 
class. Clearly, plaintiff had standing to raise the consti­
tutional issue; unlike the co-plaintiffs in Younger. he had in 
fact been subjected to a prosecution without a jury trial.
There was nothing speculative about prosecutions being carried 
in the future in the manner complained of. As long as the 
statutory scheme remained in effect, anyone charged with 
crimes involving juveniles would be prosecuted before a 
judge sitting alone. Thus, the action was a valid class action, 
presenting a real controversy. —

U  The fact that plaintiff had been prosecuted did not 
render the class action moot, since he clearly was a proper

16



Faced with this situation, the court below should have
determined that the action was validly brought as a class
action, and proceeded to decide the case on the merits. If
it had done so, it could have avoided any interference with
pending state prosecutions and at the same time vindicated the
important constitutional rights involved. We have explained
at length above why the court should have enjoined the
prosecution against plaintiff as long as he was not afforded
a jury trial. Surely the same considerations lead even more
strongly to the conclusion that relief that was prospective
only should have been granted. Again, because of the lack of
a remedy under Virginia law, the only way the constitutional
defect can be cured and continued non-jury trials ended is
for the federal courts to decide the issue and render appro- 

87
priate relief.

7/ (cont.)
representative of the class to begin with. See, Cypress v. 
Newport News Hospital Ass'n. 375 F.2d 648 (4th Cir.1967);
Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968); 
Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966), aff'd,
390 U.S. 333 (1968). -----
8/ It should also be noted that the district court could have 
found an alternative basis for jurisdiction in the first instance 
by treating the complaint as a petition for writ of habeas corpus 
under 28 U.S.C. §2254 (see 28 U.S.C. §1653, allowing amendment 
of allegations of jurisdiction). Habeas corpus, releasing 
plaintiff from custody pursuant to the conviction in the juvenile 
court, could have been granted at that time since, for the 
reasons set out in Part II, supra, there were no effective state 
remedies available to be exhausted in which the constitutional 
claim could have been raised. See Wood v. Ross, 434 F.2d 297 
(4th Cir. 1970). ----

17



CONCLUSION

For the foregoing reasons, the decision of the district 
court should be reversed, and the case either remanded with 
instructions to enter a declaratory judgment that the trial 
of adults for misdemeanors carrying jail terms of more than 
six months in juvenile court is unconstitutional, and to consider 
the necessity for enjoining any further prosecutions without 
affording defendants a jury trial, or, in the alternative, 
remanded for a decision on the merits of the constitutional 
claim in the first instance.

Respectfully submitted.

RALPH W. BUXTON
The Insurance Building 
10 South Tenth Street 
Richmond, Virginia

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
JONATHAN SHAPIRO 
R. SYLVIA DREW

10 Columbus Circle
New York, New York 10019

By > >-/ ! ̂  •-\ ______
Atto^iey for Plaintiff-Appellant

18



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the 
foregoing brief for Plaintiff-Appellant on the attorney for 
the Defendants-Appellees by mailing the same, air mail 
postage prepaid, to James E. Kulp, Esq., Office of the Attorney 
General, Supreme Court Building, 1101 East Broad Street, 
Richmond, Virginia 23219.

Done this day of July, 1971.

Atto  ̂ --- ------- - ..j-pellant

19