text:
    Dr. Joseph JOHNSON and George Baker, Plaintiffs-Appellants, v. Dr. G. Leon NETTERVILLE, Jr., etc., et al., Defendants-Appellees.
    No. 73-2176.
    United States Court of Appeals, Fifth Circuit.
    Jan. 14, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 27, 1974.
    Murphy W. Bell, Baton Rouge, La., Arthur G. Thompson, Shreveport, La., John W. Walker, Little Rock, Ark., Michael H. Gottesman, Dennis D. Clark, Washington, D. C., for plaintiffs-appellants.
    J. Reginald Coco, Jr., Sp. Counsel, State of La., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Louis M. Jones, Asst. Atty. Gen. of La., New Orleans, La., Henry Julien, Jr., Sp. Counsel to Atty. Gen., Baton Rouge, La., for def endants-appellees.
    Before JOHN R. BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   PER CURIAM:

Appellants, nontenured faculty members employed under one year contracts by Southern University, a Louisiana State School, were summarily discharged pursuant to LSA-R.S. 17:3101-3109 in the midst of campus disruptions in the fall of 1972.

On advice of counsel, rather than taking an administrative appeal pursuant to § 3103(5) of the statute appellants brought a § 1983 action in the Federal District Court seeking a temporary restraining order and preliminary and permanent injunctions requiring reinstatement with backpay and compensatory damages on the grounds that failure to afford a pre-termination hearing constituted a denial of due process of law and that appellants were dismissed for exercising protected First Amendment rights.

After a lengthy hearing, the District Court dismissed appellant’s claims due to their failure to exhaust the available state administrative remedy, however, the Court found that they had not waived their right to appeal by failing to pursue it within the statutory time limit since the president of the university had inadvertently neglected to inform them of their right to appeal in the letters of discharge. An appeal from the District Court order is now before us.

Although raised by neither party below or on appeal, careful consideration of appellant’s complaint and prayer for relief regretfully compels us to conclude that this litigation falls within the exclusive satrapy of 28 U.S. C.A. § 2281, one of our three-judge court acts which history proves to be both awkward and unnecessary.

Although appellants sought an injunction ordering immediate reinstatement, they also requested the District Court to “enjoin defendants and any person or persons acting in concert with them from denying plaintiffs their procedural due process rights under the Fourteenth Amendment to the United States Constitution.’’ By their complaint, the evidence and persistent highly skilled arguments, appellants necessarily attack and bring into question the validity of the summary procedure provided by LSA-R.S. 17:3108(5) under the due process hearing requirements of Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S. Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Fuentes v. Shevin, 1972, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556. Any injunction, negative or positive, would have the effect of mandating that the university officials not follow the procedures expressly prescribed by a statute of statewide application. That is enough to deprive a single District Judge of jurisdiction. See our extensive opinion in Sands v. Wainright, 5 Cir. (en banc), 1973, 491 F.2d 417; see also Hall v. Garson, 5 Cir., 1970, 430 F.2d 430.

We vacate and remand to the District Court for the appropriate proceeding for convening*a three-judge court.

Vacated and remanded

      . The letter of discharge to Dr. Johnson from the President of the University asserted that he had neglected his contractual responsibilities by failing to meet classes, by encouraging students not to attend classes and had further served as an advisor to dissident students and had been “instrumental in encouraging the disruption of the normal academic process of the university.”
      The letter to Dr. Baker asserted that he had been an advisor to the leaders of the dissident students and had been “instrumental in promoting activities which disrupted the normal education process of the university.”

      . CHAPTER 23. PRESERVATION OP EDUCATIONAL PROCESS [NEW]
      § 3102. Definitions

      For the purposes of this Chapter the following definitions shall apply:
      (1) “Institution of higher learning” means any state owned and operated college or university now or hereafter established, and includes all state owned and operated junior colleges and branches of such colleges and universities.
      § 3103. Disruptive acts defined; dismissal and notification thereof

      Any student, member of the faculty, administrative official or other employee of any institution of higher learning of this state who:
      (1) Organizes, and/or participates in, and/or holds himself out to be a part of any demonstration, protest, riot or other activity on or immediately adjacent to the grounds of any such institution, the effect of which is willfully to interfere with or disrupt the normal educational process or administration at such institution; or
      (2) Enters into any building or structure of such institution alone or as a member of a group, when the effect of such entry into or presence within the building or structure is willfully to interfere with or disrupt the normal educational process or administration at such institution; or
      (5) In any way willfully and directly aids, abets or encourages any of the foregoing acts may be expelled or dismissed from such institution effective immediately upon written notification of expulsion or dismissal signed by the president or his designated representative and delivered by registered mail at the last known address of the recipient. Any person so dismissed or expelled shall have the right to appeal the decision by which such action was taken. All appeals shall be heard by a panel which shall be composed of the members of the governing authority of the institution of higher learning; provided, however, that either or both of said authorities may adopt rules and regulations authorizing the president of the governing authority to appoint a special panel, composed of not less than three nor more than five members of the governing authority, to hear any appeal presented to it, and in sucli case the decision of the special panel shall constitute the decision of the governing authority in the same manner and to the same extent as if the hearing had been before the whole membership of the governing authority.
      § 3104. Content of notification of dismissal

      The notice of expulsion or dismissal shall specifically set forth the ground or grounds upon which expulsion or dismissal is based, as well as contain a short and clear statement of the facts upon which the expulsion or dismissal is based. In addition, the notice shall inform the recipient that he may, within thirty days after the date of expulsion or dismissal order, request a hearing before the governing authority of the particular institution of higher learning in which he is enrolled and/or employed. The hearing before the governing authority shall be held and its decision rendered not later than thirty days after the date of the request for such hearing by the individual concerned.
      § 3107. Prohibition against enrolling or employing dismissed student, faculty or employee

      No student, faculty member, member of the administrative staff or other employee expelled or dismissed under the provisions of this Chapter shall be eligible to be enrolled or employed in any capacity in any state owned and operated institution of higher learning in this state for a period of one year from the date of the expulsion or dismissal.

      . See L.S.A. — R.S. 17:3104, note 2, supra. Appellants were then permitted to file a protective appeal. The administrative proceedings have been stayed pending termination of this litigation.

      . Since § 2281 is jurisdictional, it may not be waived by the parties.

      . The LSA — R.S. 17:3102(1), note 2, supra.

      . Obviously, we intimate no views on the merits.

      . 28 U.S.C.A. § 2281. Injunction against enforcement of State statute; three-judge court required

      •'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section. 2284 of this title.”


source: Caselaw Access Project

author: CELEBREZZE, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert E. DELAHANTY, Neville Tucker, Defendants-Appellants.
    No. 73-1515.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 1, 1973.
    Decided Dec. 18, 1973.

      Thomas L. Hogan, Louisville, Ky., for defendants-appellants; John G. O’Mara, Louisville, Ky., on brief.
    Eldon L. Webb, Asst. U. S. Atty., for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief.
    Before WEICK, CELEBREZZE and PECK, Circuit Judges.
   CELEBREZZE, Circuit Judge.

This is an appeal from an Order finding Appellants to be in contempt of Court. Appellants were co-counsel in a criminal case in the Eastern District of Kentucky. By an Order entered March 1, 1973, a pretrial conference was scheduled for 10:00 a. m., on March 15, 1973, to hear all pending motions. Appellant Delahanty arrived approximately ten minutes late for this conference. Appellant Tucker had not intended to appear because of other matters in Louisville and he had so informed co-counsel Delahanty who was to represent both of them at the hearing. As neither attorney was present at the designated time, the Court rescheduled the hearing for 1:00 p. m. that afternoon. The Court held both attorneys in contempt for their failure to appear at the scheduled time and assessed each a fine of one hundred dollars. After an Order of Finding of Contempt had been entered, the Court scheduled a hearing the same afternoon, each attorney was given an opportunity to explain his failure to appear at the 10:00 a. m. hearing. Appellant Dela-hanty explained that his unfamiliarity with the city and difficulty in finding a parking space were the reasons for his tardiness of ten minutes and Appellant Tucker stated that he had not intended to appear since he had arranged for co-counsel to handle the matter.

Appellants first contend that the Court should not have summarily disposed of the contempt charges under Rule 42(a) of the Federal Rules of Criminal Procedure. Rule 42(a) provides:

(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

It is Appellants’ contention that the conduct complained of — their absence from the courtroom — did not occur within the actual presence of the Court and did not, therefore, come within Rule 42(a). We find this contention to be correct and agree with the holding of In re Lamson, 468 F.2d 551 (1st Cir. 1972). In Lamson, the Court said:

[w] e must remand for a hearing under Rule 42(b). We think not of this case, but of one where an attorney appears twelve minutes late; not because he ventured to use a foresee-ably delinquent elevator, but because he became involved in an incident with a building security officer, or in an attempt to quell a demonstration, or in an effort to resuscitate a heart attack victim, or, even in a struggle to open an obstinate bathroom door. Rule 42(a), which permits summary proceedings only for conduct “committed in the actual presence of the court”, enunciates a principle of law which must be applicable to the diverse factual settings we have stated, as well as to the instant case. The failure to be present in court at the appointed time is obvious to the court. Yet, while the absence, if it can be called “conduct”, is in the presence of the court in a semantic sense, the presence of the offender is in the court’s absence. As to the reasons for the presence elsewhere, they may be good ones, depending on witnesses —the security officer, some of the demonstrators or bystanders, the heart attack victim, or building maintenance personnel — or on other information which the tardy attorney could produce.
These are the kinds of events which impress upon us that a failure to appear on time may often be explained by witneses who may not be immediately available or by more than three hours preparation by the offender. An opportunity to summon the witnesses or obtain material necessary to the defense seems only fair. 468 F.2d at 552.

The same result was reached in United States v. Willett, 432 F.2d 202 (4th Cir. 1970). In re Niblack, 155 U.S.App.D.C. 174, 476 F.2d 930 (1973), held that under certain circumstances the absences of an attorney from court could be cause for a summary finding of contempt. In Niblack, however, the attorney had arrived two hours late for a motion hearing and had been repeatedly warned about arriving late. See also In re Gates, 156 U.S.App.D.C. 88, 478 F.2d 998 (1973).

We find that this matter should not have been dealt with summarily. While the absence of Appellants was obvious to the Court, the reasons for their absence were not. The Court did provide an opportunity for an explanation of their absence, but only after the Court had found Appellants to be in contempt. As the Supreme Court has stated, summary disposition of contempt under Rule 42(a) is “‘for exceptional circumstances’ . . such as acts threatening the judge or disrupting a hearing or obstructing court proceedings.” Harris v. United States, 382 U.S. 162, 164, 86 S.Ct. 352, 354, 15 L.Ed.2d 240.(1965). We find no exceptional circumstances in this case justifying summary disposition.

Appellants’ second contention is that their conduct was not contemptuous. This claim is based on the assertion that there was no intent to commit a contemptuous act. This contention was discussed in Sykes v. United States, 144 U.S.App.D.C. 53, 444 F.2d 928 (1971), which involved an attorney who had forgotten that he was scheduled to appear in Court on a particular date. The Court stated:

On the second issue relating to the sufficiency of the evidence, we are constrained to disagree with the District of Columbia Court of Appeals and the trial judge. We of course appreciate the administrative problems confronting the judge. We also agree that a lawyer must be held to a high standard of accountability and that he may not deliberately or recklessly flout the authority and dignity of the court; if he does so he should be subject to disciplinary action. Nevertheless, the offense of which the appellant was convicted was a criminal contempt. An essential element of that offense is an intent, either specific or general, to commit it. [citations omitted]
By definition, contempt is a “wilful disregard or disobedience of a public authority”, .[citations omitted]
The requisite intent may of course be inferred if a lawyer’s conduct discloses a reckless disregard for his professional duty. In the appellant’s case, however, there was no evidence that he deliberately or recklessly disregarded his obligation to the court, or that he intended any disrespect for the court. On the contrary it is clear from his unchallenged explanation that his failure to appear was not by design but resulted from a lapse of memory, preoccupation with another case, and confusion as to dates. There were no unusual circumstances justifying a conclusion that his conduct was reckless. (444 F.2d at 930) (Emphasis in original)

The application of a standard which equates reckless disregard for a court’s order with the intent necessary for conviction of criminal contempt seems to us to be reasonable. The use of this standard was reaffirmed by the District of Columbia Circuit in In re Niblack, 155 U.S.App.D.C. 174, 476 F.2d 930 (1973). The Court found that the evidence — arriving two hours late after repeated warnings about being on time— justified the conclusion that the attorney’s conduct was in reckless and wilful disregard of the Court’s order that he appear promptly for the scheduled hearing. Thus, in determining whether Appellants’ actions in this case were contemptuous, we will apply the standard of recklessness to their actions.

The District Court, in its order finding Appellants in contempt, did not state that there had been any finding that they had the intent to commit the contemptuous act. At the afternoon hearing, Delahanty and Tucker stated their reasons for being absent:

THE COURT: Well, Judge Dela-hanty and Judge Tucker, I find you in contempt of this court for your failure to appear here this morning at the hour prescribed by the order of this court and for your non-appearance, I fine you each the sum of $100.

The cost of the United States, gentlemen, to start a proceeding set by order when no one has the concern about the cost of the taxpayers of trying to advise the Court of the inability of counsel to be present is inexcusable.

MR. DELAHANTY: May I speak, Your Honor?

THE COURT: Yes, sir.

MR. DELAHANTY: If Your Honor please, of course, as you are aware of, we are from Louisville, Kentucky. We started out in well adequate time to get here this morning, Miss Freedman and myself. I am not familiar, nor is Miss Freedman familiar with the city of Lexington. We were, in fact, in Lexington in plenty of time to be at this court at 10:00. Because of the one-way streets and my unfamiliarity with the city, I had to stop and ask directions on two occasions. When we got here, the clock downstairs there was part of the parking confused, because of the funeral at the church next door, the parking lot across the street was full and we finally had to park down past the Sayer’s school and the clock was chiming as we were getting out of the car. We walked to the courthouse and came upstairs and we were out in the hallway at five after ten. From there, we walked upstairs to Mr. Siler’s office and we were informed that he was down here. We came down here and we were here at ten after. We certainly meant no disrespect to the Court in any manner in this problem.

THE COURT: Well, gentlemen, let me explain to you that the judge of the court came down yesterday to prepare and be present for this. This matter has been set by order and if counsel had excuse, they should have called. You know that, gentlemen, because you are judges and you would not suffer an attorney to abuse the process of your court and to abuse an order. You would be required to maintain a reasonable order in your court.

Judge Tucker, I- will let you put whatever you want to in the record. Gentlemen, the contempt fine is going to stay.

MR. TUCKER: Well, if it pleases the Court, after the date was changed from the 12th and 13th to today, I had no plans to be here at the hearing. My plans were that Judge Dela-hanty and Miss Freedman would handle the arguments and so forth on today. I had matters scheduled in Louisville and I thought that it was not necessary for all of us to be here. I got a call in Louisville saying that it was important for me to be here at 1:00, but I had no intention to be here at 10:00. I felt that the Court would not insist that all counsel be here for the hearing and I did not leave Louisville at 10:00. I informed co-counsel that I would not be here and that they were to handle the argument. I’m only here now because I was called and that I should be here at 1:00.

The explanations for the absence of Appellants were unchallenged. There is no indication, as in the Niblack case, that there had been repeated occurrences of tardiness. Our review of these explanations does not indicate to us that the conduct of either Appellant disclosed a reckless disregard for his professional duty or that any disrespect for the Court was intended. In this day of heavy dockets, Courts have a right to expect the punctual arrival of attorneys. However, in dealing with a criminal contempt, all of the elements must be present before there can be a conviction. We do not find that circumstances in this case satisfy the element of intent necessary to sustain the convictions.

Therefore, the judgment of the District Court is reversed.


author: GODBOLD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sheila Lynn WILSON and Louis Ray Jones, Defendants-Appellants.
    No. 72-2930.
    United States Court of Appeals, Fifth Circuit.
    Dec. 10, 1973.

      Lawrence S. Katz, Harvey S. Swickle, Miami Beach, Fla., for defendants-appellants.
    Eobert W. Eust, U. S. Atty., Jerome B. Ullman, Jr., Kerry J. Nahoom, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
    Before AINSWOETH, GODBOLD and CLAEK, Circuit Judges.
   GODBOLD, Circuit Judge:

Appellants were indicted on four counts. The first three related to 325 grams of cocaine — Count I charged conspiracy to distribute, Count II possession and Count III importation. Count IV charged importation of 4% grams of marijuana. Appellants were charged with aiding and abetting in all counts. Following a lengthy hearing the District Court granted a motion to suppress as to certain statements made by appellant Jones prior to his having been given Miranda warnings and denied the motion as to marijuana found in Jones’ suitcase, cocaine found taped to Miss Wilson’s thighs, and marijuana found in Miss Wilson’s boot. After, the rulings on the motion to suppress Miss Wilson entered a plea of nolo contendere as to Counts III and IV, with the express understanding between her and the trial court that she would have the right to review by appeal the denial of the motion.

The case then went to trial without a jury, on Counts I and II as to Miss Wilson and on all counts as to Jones. Judgments of conviction were entered against both defendants on only Counts III and IV.

There was evidence which the District Judge was entitled to credit showing the following facts and circumstances. Jones, a young man, and Miss Wilson, a young woman of 18, approached the customs area for incoming international passengers at Miami International Airport. They were serious and somber in manner. Jones had a plaster cast on one leg. (The presence of a east can trigger suspicion, since it may be used as a hiding place for contraband.) Miss Wilson was wearing a long dress. (Though not a rare item of attire, it nevertheless can trigger suspicion because of the possibility, here an actuality, of concealing contraband attached to the lower legs or thighs.) The appellants presented themselves for routine customs inspection, Jones in front, Miss Wilson behind him. They were standing together and opened their luggage at the same time, so the inspector assumed they were married or traveling together and before examining any of their luggage inquired whether they were traveling together. Jones responded that he and Miss Wilson were traveling together and had been since Freeport [in the Bahamas. They had arrived on a flight from that point], where he had met Miss Wilson at the airport.

An inspector then examined Jones’ suitcase and in it found a seed which, by examination on the scene, he concluded was a marijuana seed. He asked Jones if he knew what it was, and Jones responded that it was a marijuana seed, that there shouldn’t have been any seeds in the suitcase because he had cleaned out the bag before boarding the plane. The inspector then searched further and found a spent .38 caliber cartridge, but with the bullet still in it. He inquired of Jones where the pistol was for the cartridge, and Jones responded that he had no pistol, that the cartridge was a souvenir. The inspector handed it to Jones, who according to his own testimony, voluntarily opened it (by removing the projectile from the cartridge case) to demonstrate that it was not live ammunition, and when he did so a white flaky powder whose general appearance was similar to cocaine, fell from the cartridge case to the floor, from where it could not be retrieved. Also the inspector saw attached to the bullet, so that it extended down into the cartridge case, a miniature spoon, which he described as “the type of apparatus . . . used by narcotics users to put a small amount of cocaine in the spoon and heat up that spoon and inhale the fumes of the burning cocaine.” The inspector then informed Jones he must submit to a secondary examination, closed Jones’ bag and told Jones to accompany him.

The District Court suppressed statements made by Jones after the moment he was told he must submit to secondary examination and prior to the time he was given Miranda warnings in the secondary interrogation room. Jones contends that the necessity of Miranda warnings was triggered at an earlier point in time — when the seed was examined and found to be marijuana, suspicion having then focused upon him — and that untimeliness in giving the warnings required exclusion from evidence of the cocaine and marijuana subsequently found on Miss Wilson.

Assuming that the inspector should not have asked Jones whether he knew what the seed was without first warning him of his rights, the further search of the suitcase was not shown to be related at all to the question and to Jones’ answer. The inspector already had examined the seed and had concluded that it was contraband, and he described in his testimony the unique physical characteristics which caused him to identify the seed as marijuana. Additionally, although the inspector did not see the cartridge until he looked again in the suitcase, his discovery that it was narcotics-related, something he had no reason to suspect, came from Jones’ voluntary action of taking the cartridge apart for the purpose of demonstrating that it was not live ammunition. Assuming the “establishment of the primary illegality [the question to Jones concerning whether he knew what the seed was], the evidence to which instant objection is made [the cocaine and marijuana found on Miss Wilson]” was not evidence that “ha[d] been come at by exploitation of that illegality.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1962).

While Jones’ luggage was being examined, Miss Wilson’s suitcase and a smaller bag were also inspected, her suitcase was closed and moved by conveyor to the end of the inspection line and the small bag was returned to her. After Jones was told he would be given a secondary examination and had tossed an airline ticket to Miss Wilson, she walked through the line to pick up her suitcase, and an agent then told her to accompany him. She was taken to an examination room where in a search agents discovered the cocaine and a small quantity of marijuana in her boot.

The contention that there was not sufficient suspicion to submit Miss Wilson to a border search is meritless. It already was known that she and Jones were traveling together, she wearing a long dress and he with a cast on his leg, and the marijuana seed had been found in Jones’ suitcase and identified. And, as we already have pointed out, the search for and discovery of cocaine on her body and marijuana in her boot did not come from exploitation of the single question and answer to Jones, but even if there had been exploitation she would have no standing to object to a search of her person on grounds that were personal to Jones. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

The contention that the evidence was insufficient to convict Jones as an aider and abettor with regard to the cocaine and marijuana found on Miss Wilson is meritless.

Affirmed.

      . This court has since noted its disapproval of this practice. United States v. Sepe, 486 F.2d 1044 [1973, en banc].


author: PER CURIAM: WIDENER, Circuit Judge

text:
    Gloria JOSEPH et al., Appellees, v. Louis H. BLAIR, Mayor, City of Falls Church, Va., et al., Appellants. Patricia HOGGE et al., Appellants, v. MEMBERS OF the CITY COUNCIL, CITY OF HAMPTON, VIRGINIA, et al., Appellees. Edwin EMERSON, T/A Peninsula Massage Parlor, T/A Continental Massage Parlor, et al., Appellants, v. MEMBERS OF the CITY COUNCIL, CITY OF NEWPORT NEWS, VIRGINIA, et al., Appellees.
    Nos. 73-1131, 72-2441, 72-2442.
    United States Court of Appeals, Fourth Circuit.
    Submitted Aug. 10, 1972.
    Decided Sept. 27, 1973.
    As Amended Nov. 1, 1973.
    W. Anthony Fitch, Williamsburg, Va. (Kenneth C. Hogge and Carmel, Gray & Hogge, Hampton, Va., on brief), for appellants in Nos. 72-2441 and 72-2442.
    Thomas E. Glascock, City Atty., Hampton, Va., for appellee in No. 72-2441.
    P. A. Yeapanis, City Atty., Newport News, Va. (Robert M. Roylance, Asst. City Atty., Newport News, Va., on brief), for appellees in No. 72-2442.
    George S. Leonard, Washington, D. C. (La Rue Van Meter, City Atty., Falls Church, Va., and Philip N. Brophy, Falls Church, Va., on brief), for appellants in No. 73-1131.
    Philip J. Hirschkop, Alexandria, Va. (Joseph S. Bambacus, Richmond, Va., on brief), for appellants in No. 73-1131.
    Before BOREMAN, Senior Circuit Judge, WINTER, Circuit Judge, and BLAIR, District Judge.
   ON PETITION FOR REHEARING

PER CURIAM:

The defendant officials of the Cities of Falls Church, Hampton and Newport News, Virginia, have petitioned for rehearing and have suggested rehearing in banc. The suggestion for rehearing in banc has been submitted to a poll of the judges of the court eligible to vote thereon, and the suggestion has failed to receive a majority vote. It therefore does not carry. The panel unanimously concludes to deny rehearing, and it is so ordered.

Because of the comments of our dissenting brother, we are constrained to make some additional remarks.

There are no proceedings in the Virginia courts, civil or criminal, involving the plaintiffs before us on appeal which, we think, would warrant invoking the Younger doctrine, or applying out prior decision in Lynch v. Snepp, 472 F.2d 769, 4 Cir. Robert Kisley has been prosecuted in the Circuit Court of Fairfax County and found guilty of a violation of the Falls Church ordinance; but, by stipulation, his sentencing has been postponed pending an adjudication in the instant proceedings of the validity of the ordinance under which he was prosecuted. Robert Kisley also instituted a civil action in the Circuit Court of Fairfax County to have the Falls Church ordinance declared invalid, but he has moved to take a nonsuit under Code of Va., § 8-220 (1957 Repl.Vol.), as is his absolute right, although the state court’s order of nonsuit has not been formally entered. Thus, the criminal and civil litigation involving Kisley cannot possibly result in a state court adjudication of the issues before us. Additionally, Kisley was dismissed as a plaintiff by the district court on the grounds of res judicata, and he has not appealed that ruling. Thus, Kisley is no longer a party to the instant litigation. The suggestion that BO-JAC, Ltd., a plaintiff in No. 73-1131, may have instituted an equity action in the Circuit Court of the City of Hampton, prior to suing in the district court, that that action is still pending and that it may be made a basis for the application of Younger, is made first in the petition for rehearing, and we think it comes too late. In any event, BO-JAC is not the only plaintiff in the instant case.

While in the ordinary case we would probably stay our decision pending enlightenment from the Supreme Court in Becker v. Thompson, cert. granted, 410 U.S. 593, 93 S.Ct. 1424, 35 L.Ed.2d 686 (1973), we are presented with conflicting decisions from a single district within our circuit. The need for uniformity requires us to resolve the conflict now, and we would no less avoid a decision were we to grant the stay suggested by our dissenting brother, albeit his proposed resolution would be more palatable to him.

WIDENER, Circuit Judge

(dissenting to the denial of a rehearing en banc):

In my opinion, the case should be reheard en banc.

I

Assuming the facts stated in the petition for rehearing are correct, that is to say, there was pending civil and criminal litigation in the Virginia courts concerning the validity of the ordinances in question here at the time of the filing of these suits, then rehearing en banc ought to be granted to maintain uniformity of our decisions, Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973), as well as to decide a question of exceptional importance in the maintenance of relations between State and federal courts. Stefanelli v. Minard, 342 U.S. 117, 123, 72 S.Ct. 118, 96 L.Ed. 138 (1951), states the problem in another factual setting.

II

Taking the facts stated in the opinion as correct, that is to say, there is no pending litigation in the Virginia courts concerning the validity of the statutes involved here, I note that the question decided here was considered, with different result, in Becker v. Thompson, 459 F.2d 919 (5th Cir. 1972), and en banc, 463 F.2d 1338 (5th Cir. 1972). Cf. Jones v. Wade, 479 F.2d 1176 (5th Cir. 1973). The Supreme Court has granted certiorari in Becker, sub nom., Steffel v. Thompson, 410 U.S. 953, 93 S. Ct. 1424, 36 L.Ed.2d 686, 1973, and it would not seem to be unseemly to hold this decision and await the judgment of that court so long as the precise question as stated in the opinion of the panel is pending there for consideration. We have done so recently. Gullage v. State of South Carolina, 480 F.2d 1219 (4th Cir. 1973). Any conflicts between the judges in the Eastern District of Virginia could as easily be resolved for the moment by staying the action of the district court at Richmond, as otherwise.

I also feel the question raised is one of exceptional importance, the problem being accurately stated in Stefanelli as it may concern State and federal relations, and in Spielman, infra, as it may concern the jurisdiction of the court.

In addition, I do not read Lynch and Lake Carriers as requiring the result reached by the panel, and believe the panel decision is not consistent with Tyrone, infra.

I conceive the result reached by the panel ought to be considered in the light of In re Sawyer, 124 U.S. 200, esp. p. 209-221, 8 S.Ct. 482, 31 L.Ed. 402 (1887); Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L. Ed. 1322 (1935), and Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). Indeed, the very jurisdiction of the district court may be subject to doubt on the ground that the complaint did not state a case within its equitable jurisdiction. Spielman, 295 U.S. at 97, 55 S.Ct. 678. Bad faith enforcement of the ordinance involved has neither been alleged nor proved. Cf. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); 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). See also the concurring opinion of the Chief Justice in Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L.Ed.2d 705 (1972).

Since I am of opinion that the rights of these plaintiffs do not rise to greater dignity than First Amendment rights, the holding here would seem to be in conflict with out recent decision in Tyrone v. Wilkinson, 410 F.2d 639, esp. p. 642 (4th Cir. 1969).

       In the main briefs, counsel now petitioning for rehearing made a passing reference to a state equity case filed by BO-JAC, but there and in argument, the criminal and civil litigation involving Kisley was asserted as the basis for application of Younger. Before the district court and before us, counsel did not dispute their adversaries’ assertion that the Hampton case had become moot when a preliminary injunction had been denied and that “it was just a question of submitting an order and getting it off the docket . . . .” We will hold counsel to the implicit representations made to us.