Opinion
No. 71-1267.
January 25, 1972.
James M. Manire, Memphis, Tenn., for defendants-appellants; Joseph A. Canale, Dorothy Osradker, Memphis Tenn., on brief.
William E. Caldwell, Memphis, Tenn., for plaintiffs-appellees; Ratner, Sugarmon Lucas, Memphis, Tenn., on brief.
Appeal from the United States District Court for the Western District of Tennessee.
Before BROOKS, MILLER and KENT, Circuit Judges.
The defendants-appellants bring this appeal from the order of the District Court, 323 F. Supp. 234, restraining them from making an office in the Memphis City Hall available to a group known as "Memphians for Patriotism." The parties will be referred to as in the Court below. The defendant, Mayor of Memphis, upon learning that there was a vacant office in the Memphis City Hall made it available to a group described as "Memphians for Patriotism," and announced that the office would be available to other patriotic groups. The plaintiff, Selective Service Counseling and Information Association, sought the use of the office which was denied by the Mayor because he did not consider the plaintiff organization "worthwhile and in the community interest."
Thereafter, the plaintiffs instituted this action for declaratory judgment and injunctive relief under 42 U.S.C. § 1983. The plaintiffs claim that the Selective Service Counseling and Information Association should be granted equal rights to the use of the office in question.
After hearing the District Court concluded that under Tennessee law the Mayor was not permitted to allow a non-governmental organization to occupy space in a municipal building absent statutory or charter authority giving it the right to do so. This issue was not presented by any of the pleadings in the case. The Trial Court's decision was based entirely upon Tennessee Law, although there is some passing reference to the plaintiffs' Civil Rights in the order for injunction. We neither accept or reject the District Judge's conclusion that occupancy of an office in the Memphis City Hall by Memphians for Patriotism was a violation of the laws of the State of Tennessee. It does appear that this case presents an issue which may be controlled by the laws of the State of Tennessee. Under those circumstances the District Judge should have dismissed the action and permitted the parties to resort to the state courts for any relief because: "A state court decision here, however, could conceivably avoid any decision under the Fourteenth Amendment and would avoid any possible irritant in the federal-state relationship." Reetz v. Bozanich, 397 U.S. 82, 86, 87, 90 S.Ct. 788, 790, 25 L.Ed.2d 68 (1970).
The judgment of the District Court is reversed.