LOCATION: Allegheny County District Court
DOCKET NO.: 71-653
DECIDED BY: Burger Court (1972-1975)
CITATION: 411 US 564 (1973)
ARGUED: Jan 09, 1973 / Jan 10, 1973
DECIDED: May 07, 1973
Harry F. Cole -
Richard A. Billups, Jr. - for appellants
Facts of the case
Media for Gibson v. BerryhillAudio Transcription for Oral Argument - January 09, 1973 in Gibson v. Berryhill
Audio Transcription for Oral Argument - January 10, 1973 in Gibson v. Berryhill
Warren E. Burger:
We will resume argument in Gibson against Berryhill.
Mr. Billups, you may continue.
Richard A. Billups, Jr.:
Thank you sir and Mr. Chief Justice and may it please the Court.
The last question being discussed with one of supersedeas when the time run out and not continuing to believe with the point but on the other hand in the three-judge tribunal or three-judge trial court under said paragraph 2 and 3, it states supersedeases within the power of the court without statutory authority therefore and appeal from a judgment where -- when no statute requires supersedeas bond to affect a suspension.
It ordinarily suspends the judgment without such a bond.
In addition it will be doubly sure because it was prior to that time of that decision, the board adopted regulation number one in which they said that no action would be taken pending an appeal.
Now, I was trying to show an answer to the question of harassment that the six years between the time these charges and suits where filed resulted from no action on the part of the board.
But it involved one case that went to the Supreme Court on the question of the sustaining of the motion to abate by lower court in the injunction case against Lee.
And the Supreme Court held that -- and overruled the lower courts in their holding on the motion to abate and directed the court to proceed, and it did proceed and proceed to trial with a judgment and an injunction granted against Lee Optical from which they appeal in the House of $8.50 case, a companion case and that it involve the same questions.
However in that case, the optometrist remained in the case along with the House of $8.50 Eyeglasses when in the Lee case, a motion to abate on their part of the optometrist was sustained by the court without assigning reasons therefore and the case proceeded to trial on the case against Lee.
Then after these two -- and in the House of $8.50, an injunction was granted against both the House of $8.50 Eyeglasses and their employed optometrist from enjoining them from the unlawful practice of optometry.
Following that, then, these charges which had been voluntarily held in abeyance by the court, this covered appeared of almost six years, and with the counsel for the Board stating to counsel for the defendants that they had no desire of whatsoever to run the optometrist involve out of Alabama that they where badly needed in Alabama.
So badly is the shortage of optometrist in Alabama that Alabama has now established a school of optometry and Legislature made it the part of the medical complex at Birmingham, and 73, they will graduate their first class of optometrist.
So, that then brings us up to the injunction suit filed in federal court which was filed between the time of the decisions, favorable decisions in the lower court granting injunctions which were appealed by Lee and House of $8.50.
But following those favorable decisions, then these charges where set for hearing before the Board with due notice.
At one prior time, they where agreed -- continued by agreement as shown by an exhibit in the record because of the possibility that by participating in the trial by the State Board it might cause them to become disqualified to hear the charges as a State Board, and it was agreed by counsel and reduced to writing and is in the record that that would not be true.
However, no one -- no member of the State Board did participate in the charges, except Dr. Koch who is at that time President and soon went off of the Board after that and would not have been a member of the Board to hear these charges when this injunction suit was filed in federal court.
Now, we have the Geiger case from Georgia which is almost an identical case to the case we have here, involving charges filed against a physician before the Board, alleging misconduct on his part.
And in that case, an injunction suit was filed just as in this in the case and was heard.
It was held in that case that the charges where penal in nature and the anti-injunction statute would apply and the case was dismissed.
It came up to this Court and on March 29, 1971, the action was affirmed by this Court.
Now, the -- in McCrory v. Wood in Mississippi, it has been held that these Sections of this Optometry Law involved here are constitutional, even though held unconstitutional by the trial court in the federal injunction suit.
Now also in Alabama in the case of State v. Keel, it has been held that such charges pending before a State Board are penal in nature and by virtue of being penal in nature, then would be subject to the anti-injunction statute.
Now, then that brings us up into the case of Mitchum from Florida which did not involve a professional case, but involved a bookstore and an injunction was filed and in that case, the -- charges were filed in state court against the bookstore under the obscenity law before they were tried, before they were heard, then an injunction suit was filed in federal court as in this case.
Then upon a hearing, the three-judge trial court held that since this was a penal case pending a state court that the anti-injunction suit Section 2283 would apply and the case was dismissed.
Then upon appeal here, this Honorable Court held that the exception under 1983 or that there was an exception to with 1983 to such a penal case as that.
And based on that, this Honorable Court held that that exception applied to the case pending in Florida, and reversed the lower court and its ruling that had dismissed saying that the anti-injunction suit was absolute in its application.
This Honorable Court reversed but at the same time in a concurrence, it was suggested that perhaps the lower court should give consideration to what could be accomplished in the state court, in the disposition of this matter.
Was the case that is now before us filed under 1983?
Was this complaint in this three-judge court in this case filed under 1983?