US SUPREME COURT DECISIONS

Rehearing Denied Oct. 1, 1979.

See 444 U.S. 887, 100 S.Ct. 185.

On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.

Respondents were dismissed from their positions with the Columbus Police Department on May 31, 1971, for deliberately removing the American flag emblem from their uniforms during a public demonstration. Four days later, respondents requested hearings before the Police Hearing Board, a state-created board to which officers could appeal their discharges. Counsel for respondents informed city officials that respondents "are anxious to have a hearing on these matters and request that all efforts be made to give us an early hearing date." The Deputy Chief of Police responded by promptly notifying respondents that a "Police Hearing Board will be scheduled in the near future to hear your appeal and you will be notified of the time, date and place the hearing will be conducted." Only a week after receiving the letter granting their request for a Police Hearing Board, respondents, apparently not satisfied to invoke only the state review process, also filed the federal civil rights action now before us. Respondents claimed, inter alia, that the failure to accord them a hearing before they were discharged violated both their Fourteenth Amendment right to due process and Columbus City Ordinance No. 71-7 (1971). 1

Page 443 U.S. 905, 906

Hearings were initially scheduled before the Police Hearing Board for June 28, 1971, but, at the request of respondents' counsel, postponed until mid-July. The dismissals of respondents Leonard and White were unanimously upheld by the Board; the remaining dismissals were upheld on 4-2 votes. Although review of the Board's decisions was clearly available in state court, see Ball v. Police Committee of City of Atlanta, 136 Ga. App. 144, 145, 220 S.E.2d 479, 480 (1975), respondents chose not to avail themselves of the further state proceedings. Instead, having lost in the first stage of the state remedial process, respondents decided to change horses and pursue their action in federal court.

On April 17, 1975, the District Court for the Middle District of Georgia dismissed respondents' federal action. The District Court ruled that respondents could not pursue state remedies part way and then switch in midstream to a federal forum; having chosen initially to invoke state remedies, that route must be exhausted.

"[Respondents] seek to relitigate the same cause of action, based on the same set of facts, merely by changing legal theories and sovereignties. They do so despite the availability of a state process of judicial review of decisions of quasi-judicial tribunals such as the Police Hearing Board."

Dismissal of respondents' complaint was also supported by federal principles of abstention, since respondents claim for relief relied in part

"on the alleged misapplication of a local ordinance which

___ Police, B. F. McGuffey be preliminarily and permanently enjoined from discharging plaintiffs . . . on the grounds that he lacks the power or authority under City of Columbus Ordinance 71-7 to discharge police officers summarily as he did on May 31, 1971, and enjoin the Chief of Police, the Police Department and all other defendants from refraining to reinstate said plaintiffs and from withholding back pay from May 31, 1971."

Petitioners also claimed that their dismissals violated their First Amendment rights of speech, association, and petition. [443 U.S. 905, 907]

Full Text of Opinion