Manns, Jr. v. Hon. Lawrence Koontz

    No. 00-1871

In T he

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A n f d r e w  L . M a n n i n g , et al.,
Petitioners,

v.

T h e  S c h o o l  B o a r d  o f  H il l s b o r o u g h  C o u n t y , F l o r i d a  
(formerly Board o f  Public Instruction o f  Hillsborough County, Florida), et al.,

Respondents.

AFFIDAVIT OF SERVICE

I HEREBY CERTIFY that all parties required to be served, have been served on this 7th day of 
August, 2001, in accordance with U.S. Supreme Court Rule 29.5(c), three (3) copies of the foregoing 
REPLY BRIEF by placing said copies in the U.S. Mail, first class postage prepaid, addressed as
listed below:

Thomas M. Gonzalez 
Thompson, Sizemore & Gonzalez
Suite 200
109 N. Brush Street 
Tampa, FL 33601

t Cayj  ̂ 6 n d  C h a r l e s  C l a r k

io n  S. A d a m s , L e g a l  &  C o m m e r c ia l  Pr in t e r s  
1615 L Street, NW, Suite 100
Washington, DC 20036 
(202) 347-2803

Sworn to and subscribed before me this 7th day of August, 2001.

R E C E I V E D  
H AN D  DELIVERED

'AU€ -  7 2001
OFFICE OF THE CLERK 
SUPREME COURT, U.S. j|

District of Columbia
My commission expires April 30, 2004.



BRIEF ON BEHALF OF APPELLEES

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 71-1458

SPENCER MANNS. JR kt a l „
Appellants,

v.

THE HONORABLE LAWRENCE L. 
KOONTZ. et  ai..

Appellees.

Appeal from the United States District Court for the 
Western District of Virginia at Roanoke

A ndrew  P. M iller 
Attorney General o f Virginia

James E. K ulf 
Assistant Attorney General

Supreme Court Building 
Richmond, Virginia 23219



TABLE OF CONTENTS
Page

P relim in ary  Statem ent  .................... ................................... ...........— 1

A rgum ent ..................................... ............................................. - .............. -  2

I. The District Court Did Not Err When It Refused To 
Intervene with Pending State Criminal Prosecution. .......... 2

II. The Virginia Procedure Of Granting The Right T o A  Jury- 
Trial In A  Trial De Novo Is Constitutionally Permissible
Under The Sixth Amendment...................    5

Co n c l u s io n ......... ............................................      9

Certificate Of Se r v ic e ...........................................................................  9

TABLE OF CITATIONS

Cases

Abramovich v. Bionaz, 326 F.Supp. 142 (D.C. Pa. 1971) ............ 4

Baldwin v. New York, 399 U.S. 66 (1970) ............... - .................5, 8

Callan v. Wilson, 217 U.S. 540 (1888) ........................................... 6, 7

Duncan v. Louisiana, 391 U.S. 145 (1968) .................. -3 , 5, 6, 7, 8

Dyson v. Stein, 401 U.S. 200 (1971) ............................................. — 3

Evans v. City of Richmond, 210 Va. 403 (1969) ......................... . 3

Gaskill v. Commonwealth, 206 Va. 484 (1965) .............. ................  3

Lewis v. Kugler, 324 F.Supp. 1220 (D.C. N.J. 1971) ....................  4

Perez v. Ledesma, 401 U.S. 82 (1971) .............................................  4

Veen v. Davis, 326 F.Supp. 116 (1971) ................... ............- .......3, 4

Younger v. Harris, 401 U.S. 37 (1971) ............................... 2, 3, 4, 5



Other Authorities
Page

Virginia Constitution, Article V I § 1 (1971) .................................3, 4

§ 16.1-158 (7 ) , Code of Virginia (1950) .........................................  6

§§ 16.1-214 and 136 Code of Virginia ............. ...................... ...........  6

§ 8 Virginia Constitution ................................................. ..................... 6

50 C.J.S. Juries § 132 (c )  .................................._............................... . 6

47 Am. Jur. 2d Juries § 5 6 .... ......... ......................................................  6

Am. Bar Assn. Project on Standards for Criminal Justice, A d­
visory Committee on the Criminal Trial, Trial by Jury 20-23 
(approved draft 1968) ..................................................................  8

Sixth Amendment .......................................... ............................ 3, 6, 7, 8



United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 71-1458

SPENCER M ANNS, JR., e t  a l .
Appellants,

v.

TH E  H O N O RA BLE LA W RE N CE L.
KOONTZ, ET AL.,

Appellees.

Appeal from the United States District Court for the 
Western District of Virginia at Roanoke

BRIEF ON BEHALF OF APPELLEES

PRELIMINARY STATEMENT

This is an appeal from a judgment of the United States 
District Court for the Western District o f Virginia at 
Roanoke, wherein an action seeking declaratory and injunc­
tive relief was dismissed on April 8, 1971 ( Manns v. 
Koontz, Civil Action No. 71-C-7-R).

The appellees accept the appellants’ statement of the 
issues and statement of the case and hereby adopt the same.



2

ARGUM ENT

I.

The District Court Did Not Err When It Refused To Intervene 
With Pending State Criminal Prosecution.

The District Court’s decision not to intervene with the 
pending state criminal prosecution in this case was founded 
upon the holding of the United States Supreme Court in 
Younger v. Harris, 401 U.S. 37 (1971).

When the Supreme Court decided Younger, and its com­
panion cases, it restated the long-standing public policy 
against federal court interference with state court pro­
ceedings. The court set forth the doctrine that federal 
courts are not to enjoin pending state criminal proceedings 
except under extraordinary circumstances where the danger 
of irreparable injury is both great and immediate. In setting 
forth guidelines to aid federal courts in determining what 
constitutes immediate irreparable injury the court said:

“ Certain types o f injury, in particular, the cost, 
anxiety, and inconvenience of having to defend against 
a single prosecution, could not by themselves be con­
sidered 'irreparable’ in the special legal sense of that 
term. Instead, the threat to the plaintiff’s federally 
protected rights must be one which cannot be elim­
inated by his defense against a single prosecution.”  
Younger, 401 U.S. at 46.

Similarly, the mere fact that a statute on its face may be 
unconstitutionally vague or overly broad does not justify 
federal intervention. To halt a pending state criminal prose­
cution, the plaintiff must show in addition “bad faith 
harassment, or any other unusual circumstance that would 
call for equitable relief.”  Finally, the existence of such 
irreparable injury is of course a matter to be determined



3

carefully under the facts of each case. Dyson v. Stein, 
401 U .S.200 (1971).

The appellant urges this court to hold that Younger 
does not apply in the present case because of the existence 
of extraordinary circumstances which threaten the appellant 
with irreparable injury. The exceptional circumstance is 
said to be that there is no vehicle existing under Virginia 
law by which the constitutional claims of appellant may be 
raised. In support o f this contention appellant cites Gaskill v. 
Commonwealth, 206 Va. 484 (1965) and Evans v. City of 
Richmond, 210 Va. 403 (1969). Neither of these decisions 
lend support to the appellant’s theory. Gaskill was decided 
some three years prior to the Supreme Court’s announce­
ment in Duncan v. Louisiana, 391 U.S. 145 (1968) that 
the Sixth Amendment right to a jury trial applied to state 
prosecutions, and the question concerning the right of 
jury trial was not an issue in Evans.

Instead of appellant having no means of raising the 
constitutional issues in the Virginia courts, quite the op­
posite is true. The appellant is presently appealing his 
conviction in the Hustings Court of the City of Roanoke 
the Virginia Supreme Court wherein he is raising the con­
stitutionality of the procedure in the Juvenile and Domestic 
Relations Court of trial without jury. Absolutely no restric­
tions have been placed in the path of the appeal nor is 
appellant limited in the issues he may raise, Va. Const. Art. 
.VI, § 1 (1971). Should appellant be unsuccessful in the 
Virginia courts he may seek certiorari to the United States 
Supreme Court. In this situation no exceptional circum­
stances exist which would call for federal intervention in the 
orderly state court processes.

Several district courts have been called upon to apply the 
rulings in Younger and its companion cases to various 
factual situations. A  district court in California in Veen v.



4

Davis, 326 F.Supp. 116 (1971) refused to intervene in a 
state court prosecution under obscenity statutes. The court, 
in holding that it could not grant a disruptive interference 
with the operation of the state criminal process, quoted with 
approval from Perez v. Ledesma, 401 U.S. 82 (1971).

“ Only in cases o f proven harassment or prosecutions 
undertaken by state officials in bad faith without hope 
of obtaining a valid conviction and perhaps in other 
extraordinary circumstances where irreparable injury 
can be shown is federal injunctive relief against 
pending state prosecutions appropriate.”  Id. at 85.

In Lewis v. Kugler, 324 F.Supp. 1220 (D.C. N.J. 1971), 
the District Court refused to intervene in state court pro­
ceedings where a group of hippies filed a class action al­
leging harassment by New Jersey state police. The plaintiffs 
alleged in that case that solely because o f their highly 
individualized appearance their vehicles were subjected to 
frequent stops and searches by state troopers. In refusing 
to intervene in the pending state criminal proceedings the 
District Court dismissed the action because the plaintiffs 
failed to show the threat o f irreparable injury or the lack 
of adequate remedy under state law. Whatever constitu­
tional claims the plaintiffs had could be raised in the state 
court proceedings.

The central theme underlying the decision in Younger 
is that state courts have the obligation and equal compe­
tence with federal courts to enforce rights secured by the 
United States Constitution. See also Va. Const. Art. VI, 
§ 1 (1971). In refusing to intervene in a state criminal 
prosecution for unlawful assembly the District Court in 
Abramovich v. Dionaz, 326 F.Supp. 142 (D.C. Pa. 1971), 
said that state courts as well as the federal courts can 
be looked to in the first instance to enforce a defendant’s



5

constitutional rights. The heart of the matter lies in 
“ comity”  and Mr. Justice Black in writing for the court 
in Younger defined comity as,

“ . . . A  proper respect for state functions, a recog­
nition o f the fact that the entire country is made up of 
a Union of separate state governments, and a con­
tinuance o f the belief that the National Government 
will fare best if the States and their institutions are 
left free to perform their separate functions in their 
separate ways.”  Younger, 401 U.S. at 44.

There is nothing in the record before this court to sug­
gest that Virginia officials undertook the prosecution against 
appellant other than in a good faith attempt to enforce the 
states’ criminal laws. There have been no repeated arrests 
or prosecutions and no restrictions to keep appellant from 
raising his constitutional claims in the State’s courts. It is 
submitted that appellant has made no showing that he is 
threatened with irreparable injury by allowing the state 
criminal prosecutions to proceed in an orderly fashion, and 
therefore the District Court was correct in refusing to 
intervene in the State court proceedings. It is further sub­
mitted that under the holdings in Duncan, supra, and Bald­
win v. New York, 399 U.S. 66 (1970), discussed in Part II, 
the Virginia procedures for granting a jury trial are not 
flagrantly and patently violative of express constitutional 
prohibitions.

II.

The Virginia Procedure Of Granting The Right To A Jury Trial In 
A  Trial De Novo Is Constitutionally Permissible Under The Sixth 
Amendment.

The appellant was charged with six misdemeanors in­
volving offenses against juveniles, and under Virginia law



6

the Juvenile and Domestic Relations Courts have exclusive 
original jurisdiction of such cases. § 16.1-158(7), Code of 
Virginia, (1950), as amended. The Virginia statutes do 
not provide for a trial by jury in courts not of record, but 
do provide for a jury in a de novo trial on appeal. §§ 16.1- 
214 and 136, Code of Virginia. This statutory scheme is 
expressly provided for by § 8 of the Virginia Constitution, 
which provides in part,

“ Laws may be enacted providing for the trial of 
offenses not felonious by a court not o f record without 
a jury, reserving the right of the accused to an appeal 
to and a trial by jury in some court of record having 
original criminal jurisdiction.”

The appellant urges that the Virginia procedure for pro­
viding a jury trial in misdemeanor cases is constitutionally 
defective and cites Callan v. Wilson, 127 U.S. 540 (1888) 
in support of his contention.

When Callan was decided the Supreme Court was con­
cerned only with the procedures employed in federal courts. 
There was no attempt on the part of the Supreme Court 
to examine the broad and complex questions of what pro­
cedures states were required to employ to satisfy the 
mandate of the Sixth Amendment right to jury trial. This 
is obvious since it was not until 1968 that the Sixth Amend­
ment right to jury trial became applicable to state prosecu­
tions. Duncan v. Louisiana, supra. Callan has been limited 
to procedures required in federal prosecutions and has not 
been cited as setting any announced policy concerning pro­
cedures in state prosecutions. 50 C.J.S. Juries § 132(c) ;  
47 Am. Jur. 2d Juries § 56. Callan has been cited on numer­
ous occasions, not for the proposition that jury trials are 
required in the first instance, but rather for the propo­
sition that there are a class of petty offenses for which



7

jury trials are not required. It is submitted therefore that 
Callan does not control the issue presented in this case.

In Duncan v. Louisiana, supra, the Supreme Court made 
applicable to the states the Sixth Amendment right of trial 
by jury. In discussing the history of jury trials the court 
said,

“ The constitutions adopted by the original States 
guaranteed jury trial. Also, the constitution of every 
State entering the Union thereafter in one form  or 
another protected the right to jury trial in criminal 
cases.”  Id. 391 U.S. 153 (Emphasis supplied.)

Louisiana asserted the argument that if due process is 
deemed to include the right to jury trial, states will be 
obligated to comply with all past interpretations of the 
Sixth Amendment, which in its inception was designed only 
to control federal courts. In particular, Louisiana objected 
to the application of the decision in Callan v. Wilson, supra, 
interpreting the Sixth Amendment as barring procedures by 
which crimes subjected to the Sixth Amendment jury trial 
provision are tried in the first instance without a jury but 
at the first appellate stage by de novo trial with a jury. In 
answer to this argument the Supreme Court said in foot­
note 30,

“ It seems very unlikely to us that our decision today 
will require widespread changes in state criminal 
processes. First, our decisions interpreting the Sixth 
Amendment are always subject to reconsideration, a 
fact amply demonstrated by the instant decision.”

The Supreme Court in Duncan clearly recognized that 
the states provided different procedures by which the right 
to jury trial was protected. The Court further recognized 
that past interpretations of the Sixth Amendment by the



8

Supreme Court would not necessarily set the procedures by 
which the states had to operate.

Duncan was followed two terms later by Baldwin v. 
New York, 399 U.S. 66 (1970). In holding unconstitutional 
the New York City procedure of denying a jury trial for 
offenses punishable by confinement of more than six months, 
the Court noted that when Duncan was decided it could dis­
cover only three instances in which a state denied a jury 
trial for a crime punishable by imprisonment for longer 
than six months, namely Louisiana, New Jersey and New 
York City. Finding that two of these schemes had been 
revised since Duncan, the court said,

“ In the entire Nation, New York City alone denies 
an accused the right to interpose between himself and 
a possible prison term of over six months, the common 
sense judgment o f a jury of his peers.” Id. at 72.

In footnote 18 the Supreme Court recognized once again 
that states have various statutory provisions guaranteeing 
the right to jury trial. The court noted that these various 
state procedures were set forth in the American Bar Assn. 
Project on Standards for Criminal Justice, Advisory Com­
mittee on the Criminal Trial, Trial by Jury, 20-23 (ap­
proved draft 1968). The Virginia statutory scheme for 
providing jury trial in question in the present case is fully 
set forth on page 23.

It is respectfully submitted that the Virginia procedure 
for guaranteeing jury trials is fully consonant with the 
Sixth Amendment and has been approved, if only infer- 
entially, by the decision in Baldzuin.



9

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgment o f the District Court should be affirmed.

Respectfully submitted,

A ndrew P. M iller
Attorney General o f Virginia

James E. K ulp
Assistant A  ttorney General

Supreme Court Building 
Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I certify that on or before the 13th day of August, 1971, 
I mailed two copies of the foregoing Brief for Appellee to 
Ralph W . Buxton, 10 South Tenth Street, Richmond, 
Virginia 23219

James E. K ulp
Assistant Attorney General