author: THORNBERRY, Circuit Judge: GROOMS, District Judge PER CURIAM:

text:
    W. C. SANDERSON, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant, W. C. SANDERSON, Plaintiff-Appellee, v. UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, LOCAL UNION NO. 255, Defendant-Appellant.
    No. 72-2109.
    United States Court of Appeals, Fifth Circuit.
    July 12, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 21, 1973.

      Almon & McAlister, Vincent Mc-Alister, Sheffield, Ala., for Ford.
    William E. Mitch, Birmingham, Ala., for United Auto.
    Robert L. Potts, Frank V. Potts, Florence, Ala., for Sanderson.
    Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge.
   THORNBERRY, Circuit Judge:

This labor relations case arises out of a seniority dispute between Sanderson and Morrow, two employees of Ford Motor Company at its Sheffield, Alabama plant. The dispute was initially resolved adversely to Sanderson, and he sued (1) Ford under the Labor Management Relations Act § 301, 29 U.S.C.A. § 185, for breach of the collective bargaining agreement between Ford and his Union and, in a separate action, (2) the Union for breach of its duty to represent plaintiff fairly and for wrongfully inducing Ford to breach the collective bargaining agreement. The two cases were consolidated for trial, and judgment for plaintiff was entered upon jury verdicts in both cases. Damages were assessed equally against each defendant, and reinstatement was ordered. Ford and the Union appeal, arguing that the district court improperly instructed the jury on the Union’s duty of fair representation toward the plaintiff and the Union’s power to settle an individual employee’s grievance. We reverse and remand.

I. Facts and Proceedings Below

The main business of the Ford Motor Company plant near Sheffield, Alabama, where this case arose, is to convert molten aluminum into component parts for use in Ford automobile engines and transmissions. The plant employs about 980 hourly employees, for whom the Local Union No. 255 is the exclusive collective bargaining representative.

Under the collective bargaining agreements concluded between Ford and the Union in 1967 and in effect at all times relevant to this case the hourly employees are grouped into two basic units, the skilled trades group and the unskilled trades group. The agreements provide that seniority “shall be by interchangeable occupational groups” and that an employee’s seniority in the skilled group “shall be computed from his date of entry on that classification.” In other words, in a skilled classification, seniority is figured from the employee’s first day on the job, and seniority he may have previously acquired in an unskilled classification does not transfer or otherwise increase his skilled seniority.

An employee acquires seniority after a total of three months’ work in a trades group within a year of the date he was hired. Until he has attained seniority he is classed as a “probationary employee”. Under the collective agreements, Ford retains “sole discretion as to the laying off, transferring and rehiring of probationary employees except in cases of claimed discrimination.” When a probationary employee is laid off, unless Ford then anticipates that the layoff will be temporary, or he is recalled within a time period shorter than the time he worked, his employment is terminated and he is not credited with any accumulated time toward seniority.

Ford maintains a written “promotion from within” policy, under which it gives current employees consideration for job openings within the plant before nonemployees. The record shows that Ford and the Union accept this policy as a satisfactory and desirable principle which Ford in fact follows and is entitled to follow in its hiring practices. Although the policy is not formally incorporated into the collective bargaining agreement, recognition of its legitimacy is implicit in the collective contract section governing promotions, which provides that when merit and ability are equal the employee with the greatest seniority shall receive preference.

The adversaries in the seniority dispute which has given rise to this case are Willie Sanderson and Charles Morrow, two employees at Ford’s Sheffield plant. Morrow was last rehired on November 18, 1967 as" a permanent mold operator, a position classified in the unskilled trades group, and he attained seniority in that position after three months’ work. In April 1969 an opening occurred for a painter-glazier, a skilled position, and Morrow bid for the job. Instead of promoting Morrow “from within” to fill the vacancy, on April 21, 1969 Ford hired Sanderson for the job, who had done temporary work for Ford before but was not a Ford employee at that time. Morrow, with the support of the Union, protested initially but abandoned his protest when Ford assured him and the Union that Sanderson’s job was a temporary one — that is, one that would last less than three months and therefore would not lead to the acquisition of seniority — and that Morrow’s bid would be recognized when a permanent job became available. When it subsequently became apparent that due to the illness of another painter-glazier Sand-erson’s job would last longer than the three months, Morrow and the Union again protested to Ford that Morrow had a superior right to the permanent painter-glazier job based on the promotion-from-within policy and Ford’s specific commitment to give Morrow the next permanent painter-glazier job. Ford tentatively agreed, and laid Sand-erson off on July 17, 1969, four days before the end of his third month on the job, so that he would not attain seniority before the dispute could be resolved. After protests from Sanderson, negotiations between Ford and the Union produced a “settlement.” In accordance with its terms, on August 4, 1969, Sand-erson was reinstated, and Morrow was transferred from his position as a mold operator to a position as painter-glazier. Ford personnel records continued to reflect April 21, 1969 as Sanderson’s skilled-trades date-of-entry. Although Morrow did not begin on the job until August 4, 1969, Ford and the Union agreed to treat him as a seniority painter-glazier and to assign him an artificial skilled-trades date-of-entry of April 18, 1969, three days earlier than Sander-son’s date-of-entry. Thus, under the settlement, Morrow was considered the senior painter-glazier, although he had begun work on the job over three months after Sanderson.

On August 6, 1969 Ford and the Union officials met with Sanderson and requested him to express his consent to the settlement of the dispute by signing a written letter agreement, but Sander-son refused stating he would not “sign away his seniority.”

Two days later, however, on August 8, Sanderson did sign the agreement, or one similar to it, after receiving assurance from Ford and the Union representatives that he would not thereby sign away his seniority. Precisely what Sanderson signed was disputed at trial. The body of the letter agreement, as it was introduced into evidence below, read:

In an effort to resolve the dispute existing between the parties relating to the respective skilled-trades date-of-entry seniority of Messrs. Charles E. Morrow, SS No. [ XXX-XX-XXXX ] and Willie C. Sanderson, SS No. [ XXX-XX-XXXX ], into the classification of Painter-Glazier at the Sheffield Plant, the following is resolved and will be so recorded on Company records:

Employee

Morrow, Charles E. Sanderson, Willie C.

SS No.

[ XXX-XX-XXXX ]

[ XXX-XX-XXXX ]

Company

Service

Date

12/18/67

4/21/69

Skilled Trades Plant (Painter-

Seniority Glazier)

Date Date-of-Entry

12/18/67 4/18/69

4/21/69 4/21/69

It is further agreed to and understood, as attested by all parties involved and undersigned, that this settlement is made without any involvement of any wage adjustment to either of the above-named principals, and without establishment .of precedent in any future or past instances.

Sanderson testified that the material relating to Morrow’s date of entry did not appear on the letter when he signed it, thus necessarily implying that it was added later. Further, he testified to his understanding, drawn from assurances of a Ford Labor Relations Supervisor and a Union representative, that his signature would only confirm his own date-of-entry and would not waive any seniority rights. The Ford officials and the Union representatives involved, on the other hand, denied making any mis-répresentations as to the contents or effect of the agreement and testified that the agreement had not been changed or modified after Sanderson signed it. The jury resolved the fact dispute in Sanderson’s favor, finding that Sander-son did not voluntarily sign the letter agreement dated August 6, 1969, and that the Union had wrongfully induced him to sign it.

In the weeks that followed the signing of the August 6 letter agreement, plant rumors reached Sanderson that Ford and Union officials were claiming he had indeed signed away his seniority, and he attempted to file a grievance with the various Union officials to remove any doubt concerning his seniority rights. The Union refused to process the grievance, however, taking the position that Sanderson either had no grounds for grievance as long as he was working or had waived them by signing the August 6 letter, Notwithstanding the continuing disagreement, Sanderson and Morrow both worked satisfactorily as painter-glaziers until the most senior painter-glazier, Cole, recovered from his illness and returned to work. Cole’s return necessitated the lay-off of the least senior painter-glazier, and since Ford’s records showed Sanderson to be least senior, he was laid off on October 20, 1969. Sanderson attempted to grieve his lay-off, again asserting that he was senior to Morrow, and the Union again refused to take up and process the grievance, citing the August 6 letter agreement as the conclusion of the matter.

On October 13, 1970, Sanderson filed suit in the Circuit Court of Colbert County, Alabama, against the Union for breach of its duty of fair representation and wrongfully inducing Ford to breach the collective bargaining agreement, and on November 24, 1970, he filed a second suit in the Federal District Court for the Northern District of Alabama against Ford for breach of the collective bargaining agreement. The Union removed the first suit to the federal district court where the second one was pending, and the two were consolidated for trial. The district court submitted the cases to the jury on special interrogatories, each of which the jury answered favorably to the plaintiff, as follows:

I. Did plaintiff, W. C. Sanderson, voluntarily sign on August 8, 1969, the letter agreement dated August 6,1969 ? No.

II. Did defendant, union, breach its duty of fair representation through manipulating Morrow’s seniority by inducing Sander-son to sign the letter agreement dated August 6, 1969? Yes.

III. Did defendant, union, wrongfully induce defendant Ford to breach its collective bargaining agreement by laying plaintiff off and retaining Morrow when in fact plaintiff’s seniority was superior ? Yes.

IV. Did defendant union breach its duty of fair representation in refusing to process plaintiff’s grievance? Yes.

V. Did defendant Ford breach its collective bargaining agreement by laying off plaintiff and retaining Morrow when plaintiff actually had superior occupational group seniority? Yes.

VI. We find that plaintiff has sustained actual damages to date in the amount of $20,636.69.

VII. We find that plaintiff will sustain reasonably ascertainable damages in the future in the amount of $100,000.00.

The court found the Union and Ford equally at fault and apportioned damages, in the amounts found by the jury, equally between them. Further, the court ordered Ford to reinstate plaintiff in his painter-glazier job with a skilled trades date-of-entry prior to that of Morrow, and enjoined Ford and the Union from discriminating against Sander-son in respect to seniority or other conditions of employment. The award of future damages against each defendant was suspended on the condition that Ford reinstate Sanderson as required in the court’s order.

II. The Issues

Authoritative precedents have made clear the legal contours of the actions Sanderson has brought against his union and his employer. The National Labor Relations Act § 9(a), 29 U.S.C.A. § 159(a), confers on a duly elected union authority to act as exclusive collective bargaining representative for an appropriate bargaining unit, and N.L.R.A. § 8(b), 29 U.S.C.A. § 158(b), imposes on the union the corresponding duty to represent fairly the interest of each employee in the unit in dealings with the employer. The federal courts have jurisdiction to adjudicate a suit by an individual employee against the union for breach of this duty. Vaca v. Sipes, 1967, 386 U.S. 171, 176-189, 87 S.Ct. 903, 909-916, 17 L.Ed.2d 842. Under the fair representation doctrine, “the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and avoid arbitrary conduct.” Id., 386 U.S. at 177, 87 S.Ct. at 910. Thus, the duty is defined by three distinct standards of conduct; a violation occurs “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id., 386 U.S. at 190, 87 S.Ct. at 916; see also Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 4th Cir. 1972, 469 F.2d 181.

An employee’s action directly against his employer for breach of the collective bargaining agreement concluded between the employer and the union lies under the Labor Management Relations Act § 301, 29 U.S.C.A. § 185. Smith v. Evening News Association, 1962, 371 U.S. 195, 83 S.Ct. 267, 9 L. Ed.2d 246. The employer may defend such a suit on the grounds that the employee has failed to exhaust the remedies available to him'under the collective agreement, but this defense is not available if, as is true in this case, only the union has power to press the grievance beyond the initial stages of the contractual grievance procedure and if the union’s wrongful refusal to process his grievance prevents him from exhausting his contractual remedies. Vaca v. Sipes, supra, 386 U.S. at 185, 87 S.Ct. at 914. Thus, a union’s breach of its duty of fair representation may open the way not only to a suit against itself, but also against the employer. When both the employer and the union are sued, as in this case, the issue of the union’s breach of its duty of fair representation may be equally important for both defendants.

The main thrust of the instant appeal by Ford and the Union concerns the district court’s instructions to the jury pertaining to this crucial fair-representation issue. They object particularly, as they did in the district court, to the charge given with respect to the first interrogatory that “as a matter of law Ford and the Union could not have altered Mr. Morrow’s seniority date in violation of the terms of the contract without the concurrence of Mr. Morrow and Mr. Sanderson.” This instruction, considered in context, took from the jury the issue of whether, apart from Sanderson’s consent, the Union acted arbitrarily, diseriminatorily, or in bad faith and left to the jury the question of Sanderson’s consent as the single and pivotal fact issue in the case. It was predicated on the legal conclusion, which it communicated to the jury, that adjusting Morrow’s date-of-entry was a violation of the contract and could not be squared with any reasonable interpretation of it.

Appellants urge that the instruction was improper for two reasons. They argue first that their action in settling the seniority dispute between Sanderson and Morrow was based on interpretation of the contract rather than violation of it. Secondly, appellants argue that in any event the consent issue was irrelevant, since the Union’s power to function as bargaining representative is not dependent on the consent of the concerned employee each time a grievance is filed, and that the district court improperly instructed a verdict, in effect, on the single relevant issue in the case— whether the Union acted arbitrarily, dis-criminatorily, or in bad faith.

In appellee’s view, on the other hand, the action of the Union clearly contravened the collective contract terms and cannot be justified as an interpretation of the contract or a valid exercise of discretion. He argues that regardless of whether the Union acted in good faith, its advocacy and acceptance of a settlement which directly contravened the clear and unambiguous terms of the collective bargaining agreement — specifically, those which fixed an employee’s first day on the job as his skilled-trades date-of-entry- — was arbitrary as a matter of law if the employee did not agree to waive his rights under the collective bargaining agreement and that the consent issue was therefore properly the only one left to the jury.

Thus, issue is joined first on the question whether the union acted in clear contravention of the terms of the contract. If it did, the further question is presented whether, as a matter of law, a union violates its duty of fair representation to an employee when it agrees to a settlement of his grievance which clearly contravenes unambiguous terms of the collective agreement. The Union has also raised the issue whether the applicable Alabama statute of limitations barred the action against the Union.

III. Fair Representation

Appellee’s argument that Union imposed on him a settlement which violated his rights under the collective contract is simple and straightforward: The contract plainly provides that an employee’s seniority in the skilled-trades group shall be computed from his first day on the job. The written provision is clear and unambiguous and allows no exceptions. Morrow’s date-of-entry was “adjusted” to a date over three months before his first day on the job as a painter-glazier so that Sanderson’s seniority rights were subordinated to Morrow’s. The adjustment obviously violated the contract.

This argument fails, however, to take into account that collective bargaining agreements often include terms besides those which appear in the written contract. This court has previously recognized that “an oral agreement between the parties to a collective bargaining contract may modify, supplement or amend the collective bargaining contract.” Watson v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 5th Cir. 1968, 399 F.2d 875, 879. Necessarily, a written policy which both sides accept, such as the promotion-from-within policy in this case, is also capable of becoming part of the agreement. Further, the conduct of the parties, and the premises on which they act in their dealings with each other are highly relevant in ascertaining the actual “terms” of the collective agreement. “[T]he industrial common law — the practices of the industry and of the shop — is equally a part of the collective bargaining agreement although not expressed in it.” United Steel Workers of America v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409. In this case, the record shows conclusively that Ford’s promotion-from-within policy is a part of the industrial common law which obtains at its Sheffield plant, and as such it must be considered a part of the collective contract. It was undisputed at trial that Ford and the Union accepted the policy as a principle which in fact governed hiring at the plant. Recognition of the policy is further implicit in provisions of the written agreement.

When the promotion-from-within policy is seen as part of the collective agreement, a conflict between the policy and the date-of-entry provision becomes apparent, which we think properly called for interpretation by Ford and the Union. Nor can we say that the result they reached was a clear contravention of the contract or clearly beyond the bounds of reasonable interpretation.

It must be recognized that collective bargaining agreements cannot and do not precisely anticipate all problems which arise in the employment context to which they apply. Many provisions do little but establish the framework for further bargaining. Others have a generality which obviously looks to joint labor-management particularization. Deliberate ambiguities, inadvertent omissions, and unforeseen contingencies require continual rule making which, passing in the guise of interpretation, parallels the law making of courts and administrative agencies. -

Cox, Rights Under A Labor Agreement, 69 Harv.L.Rev. 601 (1956). In Watson v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 5th Cir. 1968, 399 F.2d 875, another case in which the interpretation-versus-violation issue was presented, this court noted the impossibility of foreseeing all the problems which will develop under a collective agreement and observed, “The interpretative procedure is necessitated by the very nature of collective bargaining agreements that involve the triangle of often diverging interests of employers, unions, and employees covering a wide range of conduct and an enormous variety of problems.” Id. at 879.

The problem in this ease does not arise from the failure of the contract to treat a problem area or an ambiguity in a single provision, but from the conflicting results which different contract terms indicate when applied to a single set of facts. The date-of-entry term, taken alone, prescribed that Morrow’s date-of-entry should be his first day on the job, a date over three months after Sanderson’s date of entry. Under the promotion-from-within policy and Ford’s commitment to the Union and Morrow based on it, however, Morrow had a superior claim to the painter-glazier opening. But for the impossibility of predicting that the opening would become a permanent job, Morrow should have received the job initially, with the early date-of-entry. To give effect to Morrow’s prior claim, Ford could have laid off Sanderson and replaced him with Morrow at any time before Sander-son attained seniority. This course would, to be sure, have avoided any conflict between contract provisions. Sand-erson, having been laid off as a still-probationary employee, would have lost all accumulated time toward seniority, and Morrow would have taken over the job. But we do not understand Sanderson to insist on this type of enforcement of his rights under the collective agreement; he did not and does not insist that he had a contractual right to be laid off permanently before attaining seniority. As a practical matter, if the Union was to avoid advocating Sanderson’s termination before he attained seniority, it was faced with the necessity of attempting some reconciliation between two conflicting contract provisions, one of which would give Sanderson, the other Morrow, superior seniority as a painter-glazier. The choice was whether to abide by the letter of the date-of-entry provision and leave Sanderson the senior painter-glazier, or to accord greater weight to the promotion-from-within policy and somehow give effect to Morrow’s prior claim. In the unique circumstances of this dispute, the Union agreed with Ford that Morrow’s prior right to the job should override the written provision fixing each employee’s date-of-entry. This solution was a departure from the strict wording of the written contract provision, but the other alternative would have contravened the promotion-from-within policy. The settlement did not diminish Sanderson’s seniority rights except vis-a-vis Morrow, and did not depart from the date-of-entry provision except to the extent necessary to effect the accommodation. We hold that under these circumstances, the district court could not properly conclude as a matter of law that the settlement agreed to by the Union clearly exceeded the bounds of fair interpretation of the collective contract.

Since we conclude the Union’s action did not clearly contravene the collective agreement, we do not reach the further questions whether such conduct would be arbitrary as a matter of law and constitute a breach of the Union’s duty of fair representation, and what effect employee consent to an ad hoc arrange7 ment in clear contravention of the contract might have.

It is well settled that when, as in this case, the union has authority to act as exclusive bargaining agent and it has not acted in clear disregard of the contract its mere refusal to press a grievance to the final procedural stage set out in the agreement does not alone constitute a breach of its duty of fair representation. Vaca v. Sipes, supra; Turner v. Air Transport Dispatchers, 5th Cir. 1972, 468 F.2d 297. When the union thus abandons a grievance in a permissible exercise of its discretion, the employee’s consent is not required and is not determinative of the issue whether the union breached its duty to the employee. We agree with appellants that the question of Sanderson’s consent did not belong in the case as a determinative issue and that the question whether the Union acted arbitrarily, discriminatorily, or in bad faith was one for the jury and could not be resolved as a matter of law on the record in this ease. Since, as we have noted above, the instructions had the effect of keeping the fair representation issue from the jury, the judgment below must be reversed and the case remanded for a new trial under proper jury instructions.

IV. Statute of Limitations

The Union contends that the applicable Alabama one-year statute of limitations for tort claims bars Sander-son’s fair representation action against the Union, since the Union’s acts complained of occurred before August 6, 1969, and suit was not filed until October 13, 1970, over fourteen months later. The parties agree that 7 Code of Alabama § 26 applies; it prescribes a one-year limitation period for “Actions for any injury to the person or rights of another, not arising from contract, and not herein specifically enumerated.” The First Circuit has held that the state statute of limitations for tort actions should apply to fair representation actions and has persuasively rejected an attempt to characterize a fair representation suit as a contract action. De Arroyo v. Sindicato De Trabajadores Packing House, AFL-CIO, 1st Cir. 1970, 425 F.2d 281, 285-289; see also Tippett v. Liggett & Myers Tobacco Co., N.D.N. C.1970, 316 F.Supp. 292, 297-298. We are in accord with this approach and agree that the Alabama one-year statute is the applicable one for this type of case.

The Union’s limitations argument must fail, however, for two reasons. First, the acts and omissions of the Union of which Sanderson complained did not all take place before August 6, 1969. One of the most important aspects of the Union’s alleged breach of its duty of fair representation was its failure to process Sanderson’s grievance after his October 20, 1969, seniority lay-off. This part of the alleged breach of duty necessarily took place after October 20, 1969, less than one year before suit against the Union was filed on October 13, 1970. Secondly, the Alabama one-year statute “begins to run when the injury happens or damage accrues, and not from the date of the act causing the injury or damage.” Brotherhood of Locomotive Firemen & Engineermen v. Hammett, 1962, 273 Ala. 397, 140 So.2d 832; accord Central Georgia Railway v. Jones, 5th Cir. 1956, 229 F.2d 648, cert. denied, 352 U.S. 848, 77 S.Ct. 32, 1 L.Ed.2d 59. In this case the limitation period began to run on October 20, 1969, the date of Sanderson’s seniority lay-off, less than one year before suit was filed on October 13, 1970. Thus, the statute of limitations will not bar retrial of the action against the Union on remand.

Reversed and remanded.

GROOMS, District Judge

(concurring in part and dissenting in part):

I disagree with the majority in the holding that the question of Sanderson’s consent did not belong in the case as a determinative issue. Nor do I construe the court’s charge as resolving the issue of arbitrariness, discrimination and bad faith as a matter of law.

Each of the complaints charge in material substance that plaintiff’s alleged wrongful discharge was based upon the letter agreement of August 6, 1969, wherein Morrow was granted occupational group seniority antedating that of the plaintiff and that plaintiff’s signature to that agreement was fraudulently obtained.

The answers state that the letter agreement disposed of plaintiff’s grievance, and that such agreement was binding on the plaintiff and barred his claim. The pretrial order confirms the centrality of the issue thus presented. The defense of the statute of limitations was clearly unsustainable. The heart issue as I view it from the record was whether the contract was validly modified by the voluntary consent of plaintiff, Sanderson.

The fact that the parties attempted to formalize their understanding by the letter of August 6 was a recognition that Ford and the Union could not alter Sanderson’s and Morrow’s seniority rights without their concurrence.

It was in the light of the issue thus framed and the act of the parties thus consummated that the court charged that “the question arises as to whether Mr. Sanderson is bound by that agreement on principles of waiver or estop-pel,” and then added, “I charge you as a matter of law Ford and the Union could not have altered Mr. Morrow’s seniority date in violation of the terms of the contract' without the concurrence of Mr. Morrow and Mr. Sanderson.”

I do not quarrel with the .majority that Ford’s promotion-from-within policy must be considered as a part of the collective bargaining contract and that recognition of that policy was implicit in Article IV. Section 2(a) oí the written agreement.

It appears to me that by the use of the words “terms of the contract,” instead of “collective bargaining contract,” words of a more restrictive description, the court encompassed everything that constituted the contract, explicit and implicit, including the promotion-from-within policy. I am therefore of the opinion that a bifurcation of the contract which results in a holding that the court’s charge was erroneous is an unmerited refinement.

The court fully presented to the jury the issue of whether the plaintiff voluntarily entered into and executed the letter agreement and whether it was altered after the plaintiff signed it. The court with clarity then presented to the jury the issue of fair representation on the part of the Union in procuring Sanderson’s concurrence in and signature to the agreement.

The court specifically charged that the Union was under a statutory obligation “to serve the interest of all members without hostility or discrimination toward any, to exercise this discretion with complete good faith and honesty, and to avoid arbitrary conduct. . A breach of the statutory duties of fair representation occurs only when a Union’s conduct toward a member of the Collective Bargaining Unit is either arbitrary, discriminatory or in bad faith. . they are obligated not to act in an arbitrary manner or to discriminate against one of the members of the Union or to exercise bad faith in adjusting disputes involving its members.”

I am of the opinion that within the framework of the issues presented and litigated, and considering the charge as a whole in its application to the issues and the evidence, the court did not err in its charge. I would affirm. I therefore respectfully dissent in the particulars herein indicated.

I concur in the Court’s decision with respect to the statute of limitations.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

GROOMS, District Judge (dissenting) : I dissent from the denial of the Petition for Rehearing and Petition for Rehearing En Banc.

      . United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Local Union No. 255.

      . Ford and the International Union signed a major collective bargaining agreement dated October 25, 1967, which contemplated supplemental agreements between Ford and the local unions with regard to seniority groups. Two such local agreements regarding seniority at the Sheffield plant were made and became effective on October 30, 1967 and on November 30, 1967. These three agreements contained the seniority provisions which are at the center of this controversy.

      . As published in 1969 in Ford’s Industrial Relations Administration Manual, Vol. V, the policy reads:
      I. Promotion From Within
      A. It is the policy of the Company to provide hourly employes with every opportunity for advancement and self-improvement through promotions from within the organization. Therefore, as openings occur within the plant, first consideration should be given to employes who qualify for such positions.
      B. Promotion from within is beneficial to the Company in the following ways:
      (1) it enables Management to further use the skills of experienced employes;
      (2) it enables the Company to attract and retain competent employes through consistent and fair application of the promotion policy and (3) the prospect of advancement favorably affects an employe’s willingness to perform to the best of his ability.
      C. The following are guides for Management when promoting employes to more responsible type of work.
      1. Employes should be given equal consideration for promotion regardless of their race, creed, color, or national origin.
      2. Promotions are made based on merit and ability. When these factors ai-e equal among two or more employes, then the employe having the greatest seniority is given preference. Merit and ability takes into consideration such factors as experience, training, quality of workmanship, attendance, conduct and safety.
      3. Applicants should be interviewed to demonstrate the Company’s interest in employes as well as providing information valuable in making the proper selection. Also, when possible, the unsuccessful candidates should be informed why another employe was selected.
      4. Management must be prepared to support a promotion with specific concrete evidence since the Union may challenge this decision through the grievance procedure.
      D. Where time permits, the Union should be notified as far in advance as possible with respect to promotional openings. The Form 3466, Notice of Hourly Employe Opening, is used to notify the Union of the existing openings.

      . The entire provision, which is Article IV, Section 2(a) of the Collective Bargaining Agreement of October 25, 1967 reads:
      Section 2. Promotions and Nonpromo-tional Job Transfers
      (a) Promotions
      Promotions shall be based primarily upon merit and ability, but where these
        are equal, the employe having the greatest seniority shall receive preference.
      With respect to promotions to higher paid jobs, where time permits, the Union shall be notified of the opening, and as far in advance as possible. Arrangements shall be made locally by mutual agreement to establish appropriate procedures for posting of such openings. By local agreement, other arrangements can be made regarding any job openings.
      Complaints that Management has not exercised fairness in judging the qualifications of the available candidates may be processed through the Grievance Procedure.

      . It is not clear from the briefs or the record whether or how the negotiations are to be classified under the four-step grievance procedure set out in the collective bargaining agreements. Sanderson protested his lay-off to several Ford and Union officials and attempted to grieve it; it appears, however, that in arriving at the settlement of the controversy between Sanderson and Morrow the Company and Union officials followed the contract procedures only quite loosely if at all.
      It is clear, however, that the Union worked for and achieved an agreement with Ford to settle the matter, and that after this “settlement” the Union refused to pursue the matter to arbitration despite Sanderson’s continuing attempts to press for a result more favorable to him.

      . When a probationary employee is “reinstated” rather than “rehired,” he is credited with time he has previously accumulated on the job toward seniority. Thus, immediately before the August 4 reinstatement Sanderson needed four days to attain seniority with a date of entry of April 21, 1969, the date he began on the job.

      . Strictly speaking, on August 6, 1969 San-derson did not have seniority; rather he had accumulated time on the job which might mature into seniority with one additional day’s work. On the following day, August 7, Sanderson completed three months of work on the job and thus became a painter-glazier with seniority under the terms of the collective bargaining agreements.

      . See interrogatories I and II, quoted in the text, infra.

      . The collective bargaining agreement provides, “The order of lay-off and recall shall be governed by first, seniority of employment, and second, ability.” Appellants make no claim that considerations of ■ ability caused Sanderson to be laid off before Morrow; it is undisputed that seniority was the decisive factor.

      . Plaintiff’s amended complaint in the suit against the Union contains no allegation of a separate jurisdictional basis for the action against the Union for wrongfully inducing Ford to breach the collective bargaining agreement. This wrongful-inducement action was alleged in a separate count, and the district court presented it to the jury in a separate interrogatory, but the parties have not treated it on this appeal as an action distinct from the unfair-representation action. We perceive no significant difference between the two counts, and we consider the wrongful-inducement count to be a part of, or coextensive with, the unfair-representation count, and not a separate cause of action.

      . An important part of the context was the charge given under the third interrogatory :
      The third interrogatory is did the defendant Union wrongfully induce defendant Ford to breach its collective bargaining agreement by laying plaintiff off and retaining • Morrow when in fact plaintiff’s seniority was superior.
      And I charge you with respect to that interrogatory that eliminating the letter agreement of August 6, 1969, assuming you have found that the agreement was altered or that it was not voluntarily signed by Mr. Sanderson, under the terms of the contract Mr. Sanderson had an occupational group seniority date of April 21, 1969. Under the terms of the contract Mr. Morrow had an occupational group seniority date of August 4, 1969, and when in October, 1969 there arose the necessity for a layoff, I charge you that but for the letter agreement of August 6, 1969, Ford did breach its contract which had been negotiated between it and the Union. And if you find that Ford did breach its contract and that it did it upon the inducement or persuasion of the Union, then both Ford and the Union would be liable to the i>lain-tiff in damages.
      The jury was thus instructed that Ford and the Union must be found liable unless Sanderson consented to the settlement.

      . See note 4, supra & accompanying text.

      . Sanderson argues that Morrow could derive no superior claim to the painter-glazier job based on the promotion-from-within policy because the policy logically could not apply to job competition between two employees, but only to competition between an employee and an “outsider.” We tliink this logic is based on an unduly narrow view of the policy and the facts. Of course, at the time Sander-son was laid off on July 17, 1969, four work days before attaining seniority, Morrow and Sanderson were both Ford employees, but Morrow’s claim was based on the state of affairs that existed when Sanderson, as an outsider, received the painter-glazier job originally on April 21, 1969, and the subsequent events which allowed the job to become a permanent one. Whether the promotion-from-within policy conferred on Morrow a continuing superior claim to the job until Sanderson actually attained seniority was itself legitimately a matter for interpretation. Where, as in this case, a “term” of the collective contract is supplied by the agreement and conduct of the parties outside the written contract, and this term is conclusively shown to be a bona fide additional term accepted by the employer and the union, then the interpretation placed on it by the employer and the union should be accorded some weight. We do not believe that their construction of the promotion-from-within policy as a basis for Morrow’s superior claim to the job can be said as a matter of law to be beyond the bounds of reasonable interpretation.

      . Cf. Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 4th Cir. 1972, 469 F.2d 181; De Arroyo v. Sindicato De Trabajadores Packinghouse, AFL-CIO, 1st Cir. 1970, 425 F.2d 281; Local 4076, United Steel Workers of America v. United Steel Workers of America, AFL-CIO, 338 F. Supp. 1154 (W.D.Pa.1972).

      . This problem is treated in the following authorities: Humphrey v. Moore, 1964, 375 U.S. 335, 84 S.Ct. 363, 11 L. Ed.2d 370 (Justice Goldberg concurring) ; Tobias, A Plea for the Wrongfully Discharged Employee Abandoned by His Union, 41 U.Cinn.L.Rev. 55 (1972) ; Levy, The Collective Bargaining Agreement as a Limitation on Union Control of Employee Grievances, 118 U.Pa.L.Rev. 1036 (1970) ; Lewis, Fair Representation in Grievance Administration; Vaca v. Sipes, 1967, S.Ct.Rev. 81; Comment, Federal Protection of Individual Rights Under Labor Contracts, 73 Yale L.J. 1215 (1964) ; Summers, Individual Rights in Collective Agreements and Arbitration, 37 N.Y.U.L.Rev. 362 (1962) ; Cox, Rights Under a Labor Agreement, 69 Harv.L.Rev. 601 (1956).

      . Cf. Order of Railroad Telegraphers v. Railway Express Agency, Inc., 1944, 321 U.S. 342, 64 S.Ct. 582, 88 L.Ed. 788; J. I. Case Company v. National Labor Relations Board, 1944, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762.


source: Caselaw Access Project

author: DONALD RUSSELL, Circuit Judge: CRAVEN, Circuit Judge

license: Public Domain

text:
    Edward Eugene BROWN, Appellant, v. UNITED STATES of America, Appellee.
    No. 72-1312.
    United States Court of Appeals, Fourth Circuit.
    Argued April 3, 1973.
    Decided Aug. 1, 1973.

      David H. Erisman and John E. Skvar-la, III, Third Year Students (Daniel H. Uollitt, Chapel Hills, N.C., [Court-appointed counsel] on brief), for appellant.
    Oscar W. Bannister, Jr., Asst. U.S. Atty. (John K. Grisso, U.S. Atty., on brief), for appellee.
    Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

On October 7, 1968 the petitioner plead guilty in the district court to two counts of mail fraud under Section 1341, 18 U.S.C. Since the petitioner had not consented to a pre-sentence report prior to the entry of his plea, no such report was available at the time his plea was entered. He, however, asked to be sentenced without delaying to secure such a report. In an effort to learn something about the petitioner in the absence of any presentence report, the trial court requested a Federal Bureau of Investigation report or sheet of prior charges against the petitioner. It developed that the petitioner was not unversed in criminal law. The report indicated that he had been engaged in a number of brushes with the law. The Court did not rely on the report, however, but carefully went over each charge appearing on the sheet with the petitioner. The petitioner admitted three prior state convictions, as set forth on that sheet. The Court then sentenced the petitioner to the maximum penalty of five years on one count of the indictment, and one year on the other count, to run conseeu-tively with the sentence imposed on the first count.

On February 28, 1972, following the issuance of United States v. Tucker (1972) 404 U.S. 443, 92 S.Ct. 589, 30 L. Ed.2d 592, the petitioner filed a petition under Section 2255, 28 U.S.C. In his petition, the petitioner alleged that the three prior state convictions he had admitted to at his sentencing had all occurred without the benefit of counsel. Citing Tucker, the petitioner asked that his original sentence be vacated and that he be re-sentenced without the court considering the three prior convictions.

The district court dismissed the petitioner’s petition without requiring a response by the Government. The petitioner has appealed that dismissal, contending that Tucker, applied retroactively, renders his sentence invalid and compels re-sentencing without any consideration of the three prior challenged convictions. We reverse and remand for further proceedings.

It is the position of the Government in its brief that the issue of retroactivity of Tucker is not ripe for adjudication on the undeveloped record in this case. It emphasizes that there has been no determination that the petitioner was without counsel at the convictions in issue. All that was before the district court on this issue was the bare allegation of the petitioner’s petition to the effect that he was not furnished counsel at these trials. The Government was afforded no opportunity to answer that claim or to be heard. It argues that it may well be that the petitioner had counsel or had validly waived counsel and that, if so, it would be unnecessary — in fact, it would be improper — for the district court to consider the retro-activity of Tucker. In short, the Gov-eminent contends that it is entitled to put at issue by a response the petitioner’s allegation that he was without counsel at his prior convictions or had validly waived counsel and to have this fact, if put in issue by the Government’s response, determined at an evidentiary hearing. Until that right has been accorded it, the retroactivity of Tucker, it contends, is not ripe for decision.

Lipscomb v. Clark (5th Cir. 1972) 468 F.2d 1321, suggests that the proper procedure to be followed by District Courts, confronted with a petition raising issues such as those posed under Tucker by this petition, contemplates an initial preliminary review of the records in the case in order to determine whether, assuming that the state convictions which the petitioner asserts are constitutionally invalid are invalid, the sentence imposed on the petitioner “would still be the appropriate sentence.” If the District Court finds that the sentence “would still be the appropriate sentence”, this decision holds that an order setting forth such finding and dismissing the petition for that reason “would seem sufficient to comply with the requirements of Tucker.” We are disposed to approve this procedure. It may be that the able District Judge, who dismissed this petition, followed the procedure suggested. Unfortunately, though, the order of dismissal did not make the basic finding that the sentence imposed “would still be the appropriate sentence” as the reason for its dismissal. It would accordingly be necessary in any event to remand the proceeding to the District Court in order that it might review the record to determine whether, assuming the invalidity of the three state convictions in question, its sentence would be the same.

Of course, should the District Court find that its sentence would be different, assuming that the state convictions are constitutionally invalid, it will then be in order for the District Court to consider the state convictions themselves. If the state convictions have been invalidated for want of counsel in habeas proceedings begun initially in the state court where such convictions were had, there is no problem; Tucker mandates re-sentencing. If, on the other hand, the state convictions have not been assailed in habeas proceedings begun in the state court where convictions were had, the District Court might well give consideration to dismissing the proceedings as premature.

A petitioner under Section 2255, it would seem, should not be able to assail a sentence imposed on him in federal court on the basis of an unresolved claim of invalidity leveled at other and different state sentences, especially if those sentences were imposed in another state and jurisdiction than that within which the federal conviction was had. In short, a 2255 proceeding based on Tucker, which is itself a collateral proceeding, should not have as its essential predicate a collateral attack on still another sentence, especially if the sentence was imposed by a state court of another jurisdiction, which has not been invalidated in proceedings originally begun in that latter jurisdiction. A contrary conclusion would mean that a petitioner might use a collateral proceeding in one jurisdiction to make “a collateral second-level” attack on judgments of convictions rendered in state courts, in which there had been not the slightest attempt at exhaustion of state remedies. Cf., Loper v. Beto (1972) 405 U.S. 473, 500, 92 S.Ct. 1014, 31 L.Ed.2d 374 (Rehnquist, J., dissenting). If the state conviction is in another state from that in which the 2255 proceedings are had, the State procuring the challenged conviction would not be a party to the proceeding, would not have been heard on the invalidation of its conviction, and would have been denied the right to a prior exhaustion of state remedies as required under Section 2254(b), 28 U.S.C. All of these reasons were recognized and commented on in Word v. State of North Carolina (4th Cir. 1969) 406 F.2d 352, 356-357, and represent in substantial degree the basis for the decision in Braden v. 30th Judicial Circuit Court of Kentucky (1973) 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443, filed February 28, 1973. They appear sufficient warrant for requiring that a prisoner who bases his attack against one sentence on a collateral attack on another state sentence, particularly, when imposed in a foreign jurisdiction, to attack first the underlying sentence in the court imposing that sentence. See, United States v. Wilkins (2d Cir. 1962) 303 F.2d 883; Jacobs v. Texas (5th Cir. 1973) 470 F.2d 1366; and Mitchell v. United States, supra, 350 F.Supp. 366. After all, it can hardly be gainsaid that a more orderly and justiciable review of the validity of a conviction can be afforded by the sentencing court than by a court of a foreign jurist-diction and this seems to have been the primary thrust of Braden.

We recognize that, contrary to our conclusion, Lipscomb would seemingly permit a prisoner to use a collateral attack on a conviction and sentence as a vehicle for a collateral attack on another state sentence or conviction, even though there had been no prior challenge of this underlying latter sentence or conviction and no exhaustion of state remedies with respect to it. That ruling is certainly contrary to the procedure followed in United States v. Wilkins, supra. In that case, the prisoner employed an attack on a New York conviction and sentence as a basis for attacking an underlying South Carolina conviction. The Court, in considering jurisdiction to entertain such an indirect attack on the South Carolina conviction, predicated its finding of jurisdiction on the “uncontroverted” fact that there was no remedy in South Carolina for attacking the South Carolina conviction. Thus, the Court said (at 884, of 303 F.2d):

“ * * * The district court has found that there is not presently available to petitioner any means by which he may challenge in South Carolina a conviction there rendered. We accept this finding, here uncontrovert-ed, based on research by the district judge and concession at the habeas corpus hearing by the Assistant Attorney General.”

It would seem to follow from this statement of jurisdiction that, had a state remedy been available to the petitioner in the state courts of South Carolina to attack the underlying South Carolina conviction, resort to such remedy would have been a jurisdictional requirement for the maintenance of the habeas proceeding attacking the New York conviction and sentence. Cf., Jacobs v. Texas, supra, 470 F.2d 1366; and Gutierrez v. Estelle (5th Cir., 1973) 474 F.2d 899.

The procedure resorted to by the prisoner in Lipscomb is, also, contrary to that adopted by the prisoner in both Franchi v. United States (5th Cir. 1972) 464 F.2d 1035 and Wheeler v. United States (9th Cir. 1972) 468 F.2d 244. In the first of these cases the prior conviction cited at time of sentencing had been vacated before the 2255 proceedings were begun and in the latter the prisoner did not file his 2255 proceedings in reliance on Tucker until after both underlying state convictions had been reversed by the state supreme court. We find the procedure followed in Franchi and Wheeler, which contemplates the prior vacation of the state convictions as an essential predicate for a claim under Tucker in all cases where a prior state conviction is involved, to be the acceptable procedure. To adopt the view of Lipscomb is to make a nullity of Section 2254(b).

There are many authorities involving recidivist or similar statutes in which the Court has considered and ruled on the constitutional validity of prior convictions of other courts. See, for instance, Williams v. Coiner (4th Cir. 1968) 392 F.2d 210, 212; Taylor v. United States (8th Cir. 1973) 472 F.2d 1178, 1180; and United States ex rel. Lasky v. LaVallee (2nd Cir. 1973) 472 F.2d 960. Actually, Tucker itself was such a case. These cases are not, however, in point here. In the recidivist cases, the prosecution must, in order to bring the case within the statute, prove other constitutionally valid convictions. The very right of the Government to convict the defendant under these statutes and to impose sentence thereunder is dependent on the ability of the state to prove that there were constitutionally valid prior convictions. In such a context, the defendant is manifestly entitled to be heard at the time in the trial court on the constitutional validity of those prior convictions and the trial court is obligated, as a condition to its exercise of power under the statute, to rule whether the defendant has been previously sentenced under a constitutionally valid conviction. United States ex rel. Lasky v. LaVallee, supra, at 962 of 472 F.2d; Oswald v. Crouse (10th Cir. 1969) 420 F.2d 373, 374-375; cf., United States v. Bishop (1st Cir. 1972) 469 F.2d 1337, 1342-1344. The Court cannot, in this posture of the case, stay the prosecution until state remedies are exhausted; it must rule on the record of conviction as it is offered in evidence. By the same token, when that conviction is assailed later in post-conviction proceedings, it must be tested by the trial record itself; and, since at trial no exhaustion of state remedies is required, similarly the post-conviction remedy does not require exhaustion. Actually, in the habeas proceedings where the issue has generally arisen in this type of case, the proof of conviction as admitted at trial failed on its face to show that defendant had been represented by counsel. See United States ex rel. Lasky v. LaVallee, supra, 472 F.2d 960. “Presuming waiver of counsel from a silent record is impermissible.” Burgett v. Texas (1967) 389 U.S. 109, 114-115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319. Accordingly, when the record of a prior conviction, as in these cases, is silent as to the presence of counsel, it is presumed that the Sixth Amendment rights of the defendant have been violated. Carnley v. Cochran (1962) 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70; Williams v. Coiner, supra, at 212 of 392 F.2d and the conviction under the recidivist statute is invalid unless the state can show affirmatively waiver of counsel on the part of the defendant in connection with the prior convictions. Oswald v. Crouse, supra, 420 F.2d 373; Losieau v. Sigler (8th Cir. 1969) 406 F.2d 795, 802-803, cert. denied, 396 U.S. 988, 90 S.Ct. 475, 24 L.Ed.2d 452. In reality, in this situation the court is not invalidating the earlier state conviction but is simply invalidating the recidivist conviction itself because the latter rests on evidence constitutionally invalid, i. e., on a prior state conviction which on its face is void under Gideon. See Craig v. Beto (5th Cir. 1972) 458 F.2d 1131, 1134.

A similar situation arises when one is tried as a second offender under Section 7237(c), 26 U.S.C., as in Martinez v. United States (10th Cir. 1972) 464 F.2d 1289, or as a proscribed purchaser of firearms by reason of earlier felony convictions under Section 1202(a), 18 U.S.C.App., as in United States v. Lufman (7th Cir. 1972) 457 F.2d 165; United States v. DuShane (2d Cir. 1970) 435 F.2d 187, 190 and Marcum v. United States (D.C.W.Va.1972) 350 F.Supp. 1115, 1118. Again, the existence of a valid prior conviction is an essential element in the crime and has to be proved by the prosecution just like any other essential fact in the case. But the situation is quite different in a case such as this, where the constitutional validity of the prior state convictions did not represent an essential element in the proof of petitioner’s crime.

The petitioner in this case does not allege whether the three prior state convictions, which the petitioner admitted at the time of sentencing, have been properly invalidated in the courts where such state convictions originated. The petition, though, has been filed pro se and great liberality in pleading is allowed in such cases. It would be in order on remand for the petitioner to be specific on the status of his state convictions.

In view of what has been said, it is unnecessary to consider at this time the retroactive application of Tucker.

The action is remanded to the District Court, with directions for further proceedings not inconsistent herewith.

CRAVEN, Circuit Judge

(concurring in part and dissenting in part):

I concur in that portion of the majority opinion which remands the case to the district court to determine if the sentence given the petitioner is an appropriate one without taking into account the challenged prior convictions which may have been constitutionally void. Such a conclusion is, of course, simply a finding of fact that the purported prior criminal record contributed nothing to the determination of the length of sentence. But if the challenged prior convictions did in fact affect the length of sentence, then I am unable to agree that the district court should dismiss the petition as premature unless the prior convictions have been invalidated in other collateral proceedings directly attacking the prior convictions.

I think United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), requires that if a habeas petitioner or a moving prisoner under § 2255 can establish that a prior conviction obtained in violation of Gideon was considered by the sentencing judge, he is entitled to be resentenced without regard to the prior conviction, or at the very least, to a finding of fact that the sentence was nevertheless appropriate, i. e., not longer than it would have been had the sentencing judge been unaware of the prior invalid conviction. To determine in a habeas or § 2255 proceeding whether prior convictions were obtained in violation of Gideon conserves judicial resources. Only one court is required to determine appropriate relief. Under the majority approach, a habeas or § 2255 proceeding is required in the first instance to determine whether an appropriate sentence was given assuming all challenged prior convictions invalid. If the sentence would not have been appropriate, a new collateral proceeding must be commenced for each challenged conviction, e.g., in the present case three proceedings would be required. At the conclusion of the proceedings collateral to the pending collateral proceeding, the district court would then have to determine the appropriate relief. Moving a stack of petitions to some other court does not really advance the judicial process.

I do not think the policy of Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), requires such a bifurcation of the judicial process. Determining the presence of counsel is not a complex issue.

The majority opinion notes with approval the invalidation of recidivist convictions resting on evidence constitutionally invalid, i. e., on a prior state conviction which is void under Gideon, even though the conviction has not been collaterally attacked. The present situation, where the sentence may have been enhanced because of the same constitutional infirmity, is distinguished on the ground the prior convictions did not represent an essential element in the proof of petitioner’s crime. It is a distinction but without a difference: enhanced punishment rests upon a prior criminal record rendered void by Gideon. As stated by the Court in Tucker:

In Burgett we said that “[t]o permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case.”

404 U.S. at 449, 92 S.Ct. at 593 (Emphasis added).

The primary difference between the facts in Tucker and this case is that in Tucker the unconstitutionality of the prior convictions had been fully adjudicated in the state courts. Here there is only Lipscomb’s allegation that the priors were obtained in violation of Gideon. The Solicitor General did not find this distinction sufficient to place this case outside the scope of Tucker. We agree.

Lipscomb v. Clark, 468 F.2d 1321, 1323 (5th Cir. 1972). See also Russo v. United States, 470 F.2d 1357 (5th Cir. 1972); Davis v. Wainwright, 462 F.2d 1354 (5th Cir. 1972); United States ex rel. Lasky v. LaVallee, 472 F.2d 960 (2d Cir. 1973).

      . Cf. Mitchell v. United States (D.C. Fla.1972) 350 F.Supp. 366, 369:
      “At the time of sentencing of this defendant by this court in this case, he was confronted with-his prior criminal record then before the court and requested to advise the court concerning its correctness. Notwithstanding petitioner was then aware of Gideon [Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799], he advised this court the record was correct. It was not until the subsequent decision of Tuolcer that he asserted, for the first time before this court, that these three convictions were invalid under Gideon. The court concludes he may not now assert such validity.”

        See, also, United States v. Janiec (3d Cir. 1972) 464 F.2d 126, 132, in which the Court suggests that at sentencing the trial court should review with the defendant all alleged prior convictions in a pre-sentence report so that the defendant may indicate which convictions on such record “had been vacated”.

      . The propriety of this procedure was recognized and followed in Haynie v. United States (5th Cir. 1973) 474 F.2d 1051; McAnulty v. United States (8th Cir. 1972) 469 F.2d 254, 255; United States v. Janiec, supra, at 132, n. 14 of 464 F.2d; Rogers v. United States (5th Cir. 1972) 466 F.2d 513, cert. denied, 409 U.S. 1046, 93 S.Ct. 546, 34 L.Ed.2d 498; Hernandez v. Craven (D.C.Cal. 1972) 350 F.Supp. 929, 939; and Towers v. Director (1973) 16 Md.App. 678, 299 A.2d 461, 465.

      . These reasons would not apply with equal force to federal prosecutions, since, wherever the conviction, the United States would be the proper party to contest the attack on the prosecution and it would be a party to the proceedings.

      . In Mitchell, a petitioner sought Tucker relief in a 2255 proceeding, contending that his prior state convictions brought out at time of sentencing were uncoun-seled and invalid under Gideon. In holding that such prior convictions must be invalidated in the state courts where he had previously been sentenced and until he did he was premature in instituting his 2255 proceeding, the Court said (at 369 of 350 F.Supp.) :
      “The proper forum in which to seek determination of invalidity of a prior conviction on Gideon principles is the court in which such prior conviction was had — and no one of the three prior convictions here challenged arose in this court.”

      . Wilcox v. Florida (Fla.Ct.App.1972) 267 So.2d 15, 16.

      . To the same effect are Slaton v. United States (D.C.Ill.1973) 356 F.Supp. 1172 and United States v. Wendt (D.C.Ga. 1972) 347 F.Supp. 647. The first relies primarily on United States v. Lufman (7th Cir. 1972) 457 F.2d 165 for its conclusion and for the reasons subsequently discussed it is believed that this and other similar cases are manifestly inapposite. The second case, while reaching the same result as Lipscomb, expresses its dismay at the prospect of becoming “some sort of super court of review with nationwide jurisdiction to determine the validity of convictions, albeit without the power to grant relief other than re-sentencing.” The very prospect it foresees, it would seem, should be sufficient reason for a different conclusion than that which the Court reached.
      There is a note on the subject, Defendant’s Right to Protection from Prior Uncounseled Convictions in 1973, Wash. U.L.Q. 197. In this note, three cases are cited to the effect that resentencing had been ordered for “prisoners who present satisfactory evidence of uncounseled convictions used to enhance punishment.” Page 202, n. 25. The first case so cited is Davis v. Wainwright (5th Cir. 1972) 462 F.2d 1354, 1356. Here the defendant had already filed his state post-conviction action and been denied relief. There had ápparently been an exhaustion of state remedies and the conviction was ripe for federal review. The second ease, Garrett v. Swenson (8th Cir. 1972) 459 F.2d 464, is substantially similar. Again, the defendant had filed post-conviction proceedings and those proceedings were pending. The Court suggested that, assuming a fair State hearing, the federal court could determine the issue on the State record. Both of these cases seemingly involved state convictions occurring in the same jurisdiction as the District Court whose sentence was under consideration and which had the power to consider in federal habeas the validity of the state convictions after exhaustion of state remedies. In both, it should be noted — and this is significant — there had been prior resort to state post-conviction remedies with reference to the underlying sentence before a petition under Tucker was filed. The final case cited was United States ex rel. Miscanage v. Howard Co. Dist. Ct., Tex. (D.C.N.J. 1972) 339 F.Supp. 292, which was a recidivist case and presents unique features subsequently discusesd herein.

      . The Court, at the outset of its opinion, emphasized that the petitioner was challenging “not the New York conviction, but New York’s utilization of a South Carolina conviction for highway robbery and larceny in imposing on him, pursuant to New York Penal Law, § 1941, an increased sentence as a second offender.” (at 884 of 303 F.2d).

      . Of course, if it is made to appear, as in Wilkins that there is no remedy available in the state court where the petititioner was previously convicted in order to correct his conviction for constitutional error, then the federal court will inquire into the validity of the conviction. Cf., United States v. Wilkins, supra, 303 F.2d 883; Weaver v. State of Texas (5th Cir. 1972) 453 F.2d 1226, cert. denied, 409 U.S. 853, 93 S.Ct. 187, 34 L.Ed.2d 97. This, however, would seem unlikely in most cases since it is now generally accepted that, as a result of Carafas v. LaVallee (1968) 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554, a conviction, even though the sentence imposed has long since been completed, is still subject to habeas correction if it has any “collateral effect” on petitioner’s rights. See Jackson v. State of Louisiana (5th Cir. 1971) 452 F.2d 451. Certainly, if the convictions enhanced punishment, they would have such collateral effect and would be within habeas jurisdiction.

      . Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

      . In DuShme, supra, 435 F.2d at 190, the Court emphasized this point, stating:
      “In this case, the validity of the Oklahoma conviction is a prerequisite to the federal conviction.”


author: LUMBARD, Circuit Judge:

text:
    Beatrice J. REILLY and Foursome Inn Corp., Plaintiffs-Appellants, v. John H. DOYLE, Individually, and as Chief of Police of the Town of East Hampton, et al., Defendants-Appellees.
    No. 632, Docket 72-2314.
    United States Court of Appeals, Second Circuit.
    Argued March 28, 1973.
    Decided July 26, 1973.

      Charles G. Pillon, New York City, for plaintiffs-appellants.
    Stephen P. Seligman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty., Gen., on the brief), for defendant-appel-lee intervenor pro se.
    Melvyn Tanenbaum, Huntington, N.Y., on the brief, for defendants-appellees Joseph McCully and Teresa McCully.
    James M. Leonard, New York City (McHugh, Heckman, Smith & Leonard, New York City on the brief), for all other defendants-appellees.
    Before LUMBARD and FRIENDLY, Circuit Judges, and THOMSEN, District Judge.

       Senior District Judge of the District of Maryland, sitting by designation.

   LUMBARD, Circuit Judge:

Beatrice J. Reilly and the Foursome Inn Corp. appeal from a decision of Chief Judge Mishler of the Eastern District of New York dismissing plaintiffs’ complaint under 42 U.S.C. §§ 1983 and 1985. The complaint sought injunctive and declaratory relief, and money damages.

Plaintiff Beatrice Reilly is the owner and chief operator of the corporate plaintiff Foursome Inn Corp. The corporation owns and operates a hotel, bar, and restaurant called “Surf and Sand” in the Town of East Hampton. The plaintiffs’ complaint alleges that Joseph and Teresa McCully, the “private” defendants, in early 1971 adopted a scheme to force the plaintiffs out of business, or to compel the plaintiffs to sell “Surf and Sand” to the McCullys for nominal consideration. In furtherance of this plan it is alleged that the Mc-Cullys induced the “public defendants,” a group consisting of members of the Town Board of East Hampton, the Chief of Police, officers of the Police Department, and Justices of the Peace, to join in this enterprise by performing various acts which deprived the plaintiffs of their federally guaranteed rights. The only justices of the peace in East Hampton also serve on the Town Board.

In considering defendants’ motion to dismiss the complaint on the grounds that the court lacked subject matter jurisdiction (F.R.Civ.P. 12(b)(1)) and that the complaint failed to state a claim upon which relief may be granted (F.R. Civ.P. 12(b)(6)), the district judge permitted the parties to submit affidavits. This had the effect of converting the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. Chief Judge Mishler then granted the “public” defendants’ motion to dismiss pursuant to Rule 12(b)(6), and presumably granted the motion for summary judgment. For the reasons stated below we affirm the district court’s dismissal of the complaint.

1966 the Town Board of East Hampton acting pursuant to Section 130 of the Town Law of New York State, N.Y. Town Law § 130 (McKinney’s Consol.Laws c. 62, 1965), adopted an “Anti-Noise Ordinance.” In June, 1971 the “private” defendants, the McCullys, complained to the East Hampton Police Department concerning noise emanating from the plaintiffs’ “Surf and Sand.” Defendant Jarrett, a police officer, entered the plaintiffs’ premises at twelve midnight on June 14, 1971, and issued a summons to Reilly charging her with violating the “Anti-Noise Ordinance.” Later that day Jarrett returned to the “Surf and Sand” and allegedly used force and violence to take Beatrice Reilly into custody, and to bring her to the police station. On July 27, 1971 Beatrice Reilly was tried before and convicted by “public” defendant Frood, a justice of the peace and a non-lawyer. This conviction and the fine of $50 was affirmed by a state appellate court. Later that summer, another police officer, defendant Lyon, issued a summons to Judy Schenck, an employee of the plaintiffs, for violating the noise ordinance. In September, 1971 still another summons was issued to Beatrice Reilly for violating the same ordinance. Both of these cases are still pending in the state court. In

During the summer of 1971, the Mc-Cullys petitioned the Town Board, composed of certain of the “public” defendants, to adopt a parking ordinance prohibiting the parking of cars on either side of the highway in front of the “Surf and Sand.” Later in 1971 the Town Board adopted an amendment to the Town’s parking regulation which prohibited parking on either or both sides of the same highway for some distance on either side of the “Surf and Sand.”

In the final set of factual allegations plaintiffs contend that the defendant Police Chief Doyle ordered defendants Jarrett and Lyon, and other police officers, to inspect the “Surf and Sand” on a regular daily basis at or about 2:00 a. m. on the pretext of ascertaining whether alcoholic beverages were being sold. These defendants continued the inspections in spite of being advised prior to August, 1971 by the Suffolk County Alcoholic Beverage Control Board that under the plaintiffs’ hotel liquor license customers were permitted to remain in the hotel lobby after 2:30 a. m. In addition, on December 3, 1971, officer Lyon acting pursuant to an order of Doyle entered the “Surf and Sand,” wrongfully accused Beatrice Reilly of serving alcoholic beverages after hours, and physically took Beatrice Reilly into custody. Through the alleged use of force she was brought to the police station where she was forced to disrobe and was searched by a police matron, the defendant Katherine Babcock, and held overnight in an unheated cell. Although she alleges that she was not allowed to call counsel and was denied bail, counsel appeared that morning and she was released. Charges were lodged against her for resisting arrest. This misdemeanor charge is still pending.

Beatrice Reilly contends that these events were part of a scheme engineered by the “private” defendants, the Me-Cullys, with the aid of the “public” defendants to deprive the plaintiffs of privileges and immunities secured by the Constitution. In the prayer for relief the plaintiffs seek the following: 1) convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284; 2) declaratory and injunctive relief declaring invalid and enjoining the enforcement of: (a) the East Hampton Anti-Noise Ordinance; (b) Section 31 of the Town Law of New York State, N.Y. Town Law § 31 (McKinney, 1965), insofar as it permits justices of the peace to serve as members of the Town Board; (c) Section 20 of Article 6 of the state constitution, Section 31 of the Town Law, N.Y. Town Law § 31 (McKinney, 1965), and Section 105 of the Uniform Justice Court Act, Uniform Justice Court Act § 105 (McKinney, Supp. 1971-73), insofar as they allow non-lawyers to serve as judges in certain towns and villages; 3) a declaratory judgment that the Alcoholic Beverage Control Law of New York and the Rules and Regulations promulgated thereunder are not violated by the plaintiffs when the plaintiffs permit friends or guests to remain near the bar after 2:30 a. m.; 4) an injunction restraining the enforcement of these alcoholic control laws and regulations against the plaintiffs; and 5) equitable relief and money damages against all the defendants for conspiring to deprive plaintiffs of their federal constitutional and civil rights.

I

Except for the money damage claim for violation of plaintiffs’ federally secured rights, the complaint asks a federal court to declare unconstitutional and to enjoin the enforcement and utilization of various local and state laws, and a state constitutional provision. The posture of this litigation makes such relief inappropriate at this juncture.

The convening of a three judge court to enjoin the enforcement of the “Anti-Noise Ordinance” is clearly unwarranted. The Supreme Court has held that “the term ‘statute’ in § 2281 does not encompass local ordinances or resolutions.” Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544, 1548, 18 L.Ed. 2d 643 (1967). See also Board of Regents v. New Left Education Project, 404 U.S. 541, 543, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972). The noise pollution statute in the instant case is obviously a local ordinance, and a three-judge court is unnecessary to enjoin its enforcement.

The other statutes and the one state constitutional provision attacked in this action would come within the purview of § 2281. However, neither a three-judge court nor a single federal judge should at this point hear the dispute. This also applies to the demand that a single federal judge grant the plaintiffs’ relief concerning the noise pollution statute.

Federal intervention would require the court to examine the constitutionality of a local criminal statute dealing with noise control, as well as the constitutionality of state laws permitting Beatrice Reilly to be tried before a justice of the peace who also sits on the Town Board and is not an attorney. A federal court may not assert jurisdiction over these issues at this time. Similarly, a federal constitutional attack on Beatrice Reilly’s first conviction for violating the “Anti-Noise Ordinance” may no longer be heard as judgment of that conviction has become final, Respress v. Ferrara, 321 F.Supp. 675 (S.D.N.Y.1971) (three-judge court); and Murray v. Oswald, 333 F.Supp. 490 (S.D.N.Y.1971).

Plaintiffs, however, also seek declaratory and injunctive relief concerning the Town Law and the noise control ordinance, stemming from the additional summonses issued to her and her employee following the first conviction under the “Anti-Noise Ordinance.” The employment of a three-judge court here would violate the doctrine enunciated by the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). In Younger the Court held that before a federal court could enjoin a pending state court criminal proceeding, the moving party must show that the pending state prosecution will cause irreparable harm which is both “great and immediate,” a showing of urgency more compelling than a showing of possible irreparable harm in the future. Younger v. Harris, supra, 401 U.S. at 46, 91 S.Ct. 746. The Court also rejected the view that its prior opinion in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), stands for the proposition that a federal court can restrain the enforcement of a state statute solely by a showing that on its face the statute violates the First Amendment. In Samuels the Court held that the Younger principles dealing with the propriety of federal injunctive relief would also govern the use of federal declaratory relief in connection with pending state criminal proceedings.

Applying these principles we conclude that federal intervention in the state prosecution pending against Beatrice Reilly is foreclosed at this time. There is no reason to believe that Beatrice Reilly would not be afforded the opportunity to raise her constitutional claims in the state court proceedings. From our review of the record it is not even apparent that Beatrice Reilly in the first prosecution under the noise statute raised the constitutional objections to the justice of the peace system that she now presents in her civil rights complaint and in her demand for a three-judge court. The plaintiffs have made no showing, other than a few highly conclusory allegations, that any unusual circumstance as contemplated in Younger v. Harris, supra, 401 U.S. at 54, 91 S.Ct. 746, exists to warrant the assertion of federal intervention. Nor does our reading of the various pertinent statutes justify the conclusion that every clause, sentence and paragraph in these statutory and constitutional provisions flagrantly violate express constitutional prohibitions. See Younger v. Harris, supra 401 U.S. at 53-54, 92 S.Ct. 746; Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 85 L.Ed. 1416 (1941).

The record is not clear on the status of any state proceeding for violation of the Alcoholic Beverage Control Laws. Paragraph 27 of the complaint states that Beatrice Reilly was taken into custody for serving alcoholic beverages after hours and that she was charged with resisting arrest. There is no assertion that she was charged with violating the alcoholic beverage laws or that any prosecution pursuant to these laws or regulations is currently pending. In any event we fail to see how paragraphs 25, 26 and 27 of the complaint concerning these laws state a claim for federal relief. Essentially this part of the complaint charges certain police officers with acting contrary to a state law. To invoke federal jurisdiction the plaintiff must allege that these laws violate the federal constitution or that their enforcement against the plaintiff is being conducted in an unconstitutional manner.

The complaint clearly fails to allege that the Alcoholic Beverage Control Laws and regulations violate the federal constitution. The allegations also fail to state a claim for relief concerning the enforcement of these laws. The plaintiffs fail to allege that they were singled out for discriminatory treatment, or that the police permitted others to engage in the same activity with impunity while the plaintiffs were harassed and arrested for similar actions. Such discriminatory administration of an otherwise valid statute would deprive plaintiffs of equal protection of the laws. Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L.Ed. 220 (1886). See also Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Shock v. Tester, 405 F.2d 852 (8 Cir.) cert. denied, 394 U.S. 1020, 89 S.Ct. 1641, 23 L.Ed.2d 45 (1969). The complaint fails to allege and the affidavit submitted on behalf of the plaintiffs by their attorney fails to elaborate on any such discriminatory enforcement of the state laws and regulations.

II

In addition to the effort to attack the validity of certain statutes and ordinances, the complaint seeks damages and injunctive and declaratory relief against the plan of the “public” and the “private” defendants to deprive plaintiffs of their federally protected rights. In our view, the allegations of the complaint fail to set out in sufficient detail a conspiracy under color of state law to deprive plaintiffs of their constitutional and civil rights.

The “public” defendants were acting pursuant to a local anti-noise ordinance and state alcoholic beverage laws and regulations. The police officers and the justices of the peace enjoy at least a qualified privilege when acting pursuant to laws and regulations. See Christman v. Skinner, 468 F.2d 723 (2 Cir.1972); Nelson v. Knox, 256 F.2d 312 (6 Cir.1958). Moreover, the Supreme Court has held that the defense of good faith and probable cause is available to a police officer in an action under § 1983. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The complaint in the instant case negates any contention that the “public” defendants deliberately and with malice participated in a scheme to deprive plaintiffs of their civil rights. The ninth paragraph alleges that the “MeCullys induced the other defendants, intentionally and consciously, or unintentionally and unconsciously, to join in the aforesaid plan and scheme.” The statement by the plaintiff that the defendants may have acted “unintentionally and unconsciously” rebuts any assertion of bad faith or malice on the part of the “public” defendants. Without the intentional participation of these “public” defendants in the scheme, a § 1983 action must fail for lack of a person acting under color of state law.

Paragraphs 23 and 24 of the complaint endeavor to establish a civil rights action on the basis that the MeCullys induced the defendant members of the Town Board to adopt parking ordinances. . There is no allegation that this action deprived the plaintiffs of equal protection of the laws through discriminatory legislation. More significantly, it would be highly undesirable precedent to subject a citizen to a civil rights action for merely exercising his right to seek legislation from the properly constituted legislative bodies. The use of the legislative process by private citizens should be encouraged rather than discouraged by the courts.

Finally parts of paragraphs 15 and 27 remain. In part the plaintiff, Beatrice Reilly, alleges that on two different occasions Officer Jarrett and Officer Lyon used force and violence to arrest her. An action pursuant to § 1983 is established when local law enforcement officers acting under color of state law use excessive force in the enforcement of state and local laws. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Arroyo v. Walsh, 317 F.Supp. 869 (D.Conn.1970); Rosenberg v. Martin, 478 F.2d 520 at 526 (2 Cir. 1973) ; and Johnson v. Glick, 481 F.2d 1028 (2 Cir. 1973). The complaint here fails to allege any use of excessive police force or that the procedures followed in arresting and detaining her went so far beyond what would normally be required in detaining a person overnight as to constitute a cause of action under § 1983.

Accordingly, we affirm the dismissal of this action as to all allegations in the complaint.

      . The “private” defendants Joseph and Teresa McCully are two citizens not holding any public office who the plaintiffs contend organized the plot to deprive the plaintiffs of their federally protected rights. The McCullys reside in premises adjoining the “Surf and Sand” and formerly owned a bar and restaurant in Montauk. The “public” defendants are the other defendants. Each one holds a public office, and their actions are “under color of state law.” They are John Doyle, Chief of Police; Barry Jarrett, Bruce Lyon, Kenneth Neuhaus, and Katherine Babcock, police officers; Shepard Prood and Edward Hults, members-of the Town Board and Justices of the Peace; and Eugene Lester, Henry Mundt, and Prank Borth, members of the Town Board.

      . The district judge in his memorandum opinion stated that affidavits and exhibits were submitted by the defendants in support of their Buie 12(b)(1) and 12(b) (6) motions to dismiss. The use of such affidavits and exhibits converts a 12(b) (6) motion into a Buie 56 motion for summary judgment. Since the litigants never objected to the manner in which this conversion was accomplished, we see no reason for deciding whether the plaintiff received a reasonable opportunity to present pertinent material, as required when a 12 (b) (6) motion .is considered as a motion for summary judgment. See Dale v. Hahn, 440 F.2d 633, 638 (2 Cir. 1971). We note, however, that the plaintiffs’ attorney did submit an affidavit in response to the defendants’ motion to dismiss. Although the concluding paragraph of the district judge’s opinion only refers to Buie 12(b) (6) we assume in light of earlier parts of his decision that he was granting summary judgment for the. “public” defendants.

      . Gibson v. Berryville, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488, decided after the argument in this case, does not call for a different conclusion. The Court simply refused to extend the doctrine of Younger v. , Harris, supra, to a state administrative proceeding pending before an allegedly incompetent tribunal.

      . Beatrice Reilly’s main constitutional attack centers on lier prior and contemplated trial before the justice of the peace who also serves on the Town Board. The issue is whether this arrangement violates the principles of Ward v. Village of Mon-roeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) and Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), or is permissible under Dugan v. Ohio, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784 (1928). We believe for the reasons articulated above that a decision on this issue at this time would be an unwarranted exercise of federal judicial authority.