Babbitz v. McCannBabbitz v. McCann
- Reporters:
- ,
- Before:
- Gordon
DECISION and ORDER
MYRON L. GORDON, District Judge.The plaintiff seeks the convening of a three-judge district court and an order enjoining a state criminal prosecution which is currently pending against him in the circuit court of Milwaukee county.
The plaintiff brought an earlier action, No. 69-C-548, in which he sought declaratory and injunctive relief against the same state prosecution of which he now complains. In that case, a three-judge district court was convened, 306 P.Supp. 400, and it declared unconstitutional those sections of the Wisconsin statutes under which the plaintiff is being prosecuted. 310 F.Supp. 293. The three-judge court also concluded that injunctive relief against the pending state prosecution would be inappropriate.
Subsequently, the state circuit court denied a request that it dismiss the pending charges. The plaintiff urges that the state circuit court’s action now justifies the issuance of an injunction by a three-judge federal district court.
The first question which the present application raises is whether a three-judge district court should be convened. In my opinion it should not.
The three-judge district court in No. 69-C-548 has already held that the statute in question is unconstitutional. Accordingly, there is no outstanding substantial federal question present which could require the convening of a three-judge district court. Turner v. City of Memphis, Tennessee, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962); Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962).
The second question which the plaintiff’s present suit presents is whether injunctive relief is currently appropriate. The decision of the three-judge district court in case No. 69-C-548 is also dispositive of this issue. The latter court’s ruling was made only after a full opportunity for the submission of briefs and for oral argument. In my opinion, further argument on the question of injunctive relief would not be beneficial.
In case No. 69-C-548, the court held that although the plaintiff was entitled to a declaratory judgment in the federal court while his state prosecution was pending, the strong policy of abstention asserted in
I conclude that the decision in case No. 69-C-548 fully disposed of both of the issues in the present case.
*727I deem it necessary to deny the plaintiff’s requests for the convening of a three-judge district court and for a temporary restraining order.
Now, therefore, it is ordered that the plaintiff’s motions for the convening of a three-judge district court and for a temporary restraining order be and they hereby are denied.
It is further ordered that the action be and hereby is dismissed.