311 F. Supp. 1116 | D. Colo. | 1970
Lead Opinion
The genesis of the controversy presented to this statutory three-judge court is in two Colorado state court suits charging Fremed and Kirkland with viloating the Colorado flag desecration statute.
The complaint alleges multiple jurisdictional grounds, e. g., 28 U.S.C.A. § 1343(3); 28 U.S.C.A. §§ 2201, 2202; Rule 57, F.R.Civ.P., 28 U.S.C.A.; and the First, Fifth and Fourteenth Amendments of the United States Constitution. That statement is jurisdictionally ade
With the exception of a single isolated case,
Having failed to seek an “interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute * * * ”
. C.E.S. (1963) 40-23-3 as repealed and reenacted in 1969. 2. Hereinafter Fremed and Kirkland will be referred to as plaintiffs.
. See Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).
. E. g. Wilson v. City of Port Lavaca, Texas, 285 F.Supp. 85 (S.D.Tex.1968); Hinton v. Threet, 280 F.Supp. 831 (M.D.Tenn.1968); Bartlett & Co., Grain v. State Corp. Com’n of Kansas, 223 F.Supp. 975 (D.Kan.1963); 1 Barron &. Holtzoff, Federal Practice and Procedure (Wright ed. 1960) § 52 at 277-79.
. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941).
. Smith v. Pearson, 294 F.Supp. 611 (N.D.Miss.1968).
. See Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Gomez v. Layton, 129 U.S.App.D.C. 289, 394 F.2d 764, n. 4 (1968); McManigal v. Simon, 382 F.2d 408 (7th Cir. 1967); Norton v. Campbell, 359 F.2d 608 (10th Cir. 1966); Ream v. Handley, 359 F.2d 728 (7th Cir. 1966); Hall v. Welch, 185 F.2d 525 (4th Cir. 1950); Ince v. Rockefeller, 290 F.Supp. 878 (S.D.N.Y.1968); Wilson v. City of Port Lavaca, Tex., 285 F.Supp. 85 (S.D.Tex.1968); Hinton v. Threet, 280 F.Supp. 831 (M.D.Tenn.1968); Whitney Stores, Inc. v. Summerford, 280 F.Supp. 406 (D.S.C.1968); Brotherhood of Locomotive Firemen and Enginemen v. Chicago, B. & Q. Rd. Co., 225 F.Supp. 11 (D.D.C.1964); Coyle v. Pope & Talbot, Inc., 207 F.Supp. 685 (E.D.Pa.1962); United States ex rel. Watkins v. Commonwealth of Pennsylvania, 214 F.Supp. 913 (W.D.Pa.1963); Arrow Lakes Dairy, Inc. v. Gill, 200 F.Supp. 729 (D.Conn.1961); Cities Service Oil Co. v. McLaughlin, 189 F.Supp. 227 (D.D.C.1960); Harlan v. Pennsylvania Rd. Co., 180 F.Supp. 725 (W.D.Pa.1960).
. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952); International
. 28 U.S.C.A. § 2281.
Dissenting Opinion
(dissenting).
I respectfully dissent, not on the basis that the majority opinion is lacking in legal soundness. On the contrary, it conforms to the law. In my judgment, however, it would be preferable, since the court has heard the case on the merits, for the three judges to finally determine it with a proviso that the single judge to whom it is assigned, the undersigned, agrees with the disposition made. This would allow the plaintiffs to appeal this both as a three-judge matter and as a single judge matter, and avoid the complicated procedural traps which can result from a subsequent decision that it is properly a three-judge case.
Why is it arguable that a three-judge court should be convened in this case? Involved herein is a state criminal statute with respect to which First-Fourteenth Amendment contentions are advanced. If this statute were declared by one or three judges to be unconstitutional, the effect would be identically the same as the issuance of an injunction, and in the area of state criminal statutes involving personal rights the policy against a single judge frustrating enforcement of such a statute by state authorities is strong.
Secondly, the handling of the case on the basis suggested above would avoid further proceedings which pose a threat that it will return to haunt us. The plaintiffs are free to apply to this court for leave to amend their complaint so as to request injunctive relief. If and when this happens, the undersigned will be obligated to grant the motion and then again request the convening of a three-judge court. Without doubt the same court will be convened, and so we will again face the merits of the case and on this occasion will be compelled to determine them. Conceivably, of course, the case is now moot. If so, the apprehensions expressed above will not materialize.
It is with regret that I disagree with my learned colleagues.