329 F. Supp. 315 | E.D. Pa. | 1971
Presently before the Court is plaintiff’s motion to have a three-judge court convened pursuant to 28 U.S.C.A. § 2281, and defendants’
A thorough reading of the complaint reveals that plaintiff is alleging a continuing series of actions on the part of the Insurance Department which precludes them from writing insurance in the state.
The three-judge court is a unique feature in the federal judicial process and was initiated by Congress largely as means of protecting state legislation regarding economic enterprises from invalidation by a single district court judge. The three-judge court was designed to bring about a more expeditious and authoritative determination of the issue thereby reducing the friction which was created when a single federal judge enjoined the enforcement of a state statute. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1 (1964). Since it is a unique feature which was designed to meet a specific type of problem the district judge should strictly interpret the prerequisites for the impaneling of a three-judge court. Mr. Justice Frankfurter, speaking for the Court in Phillips v. United States, 312 U.S. 246, 250-251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941) stated: “[t]he history of § 266 [the predecessor of § 2281] (citations omitted), the narrowness of its original scope, the piece-meal explicit amendments which were made to it (citations omitted), the close construction given the section in obedience to Congressional policy (citations omitted), combine to reveal § 266 not as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such.”
Section 2281 of Title 28 provides in part:
“[a]n 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 * * * 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 this section this Court is required to ask the Chief Judge of the Third Circuit to impanel a three-judge court if there is a substantial, non-frivolous attack on the constitutionality of a state statute and injunctive relief is sought. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Idewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Eason v. Dickson, 390 F.2d 585 (9th Cir. 1968); German v. South Carolina State Ports Authority, 295 F.2d 491 (4th Cir. 1961). However, a single judge must make the initial determination whether or not the prerequisites for convening a three-judge court have been met. Fiumara v. Texaco, Inc., 240 F.Supp. 325 (E.D.Pa.1965). Moreover, the law is clear that the statute itself must be substantially challenged in order to warrant or permit the impaneling of a three-judge court. A question even a constitutional one, which raises the propriety of state action is not suffi
Safeguard also contends that 40 Pa.Stat.Ann. § 202, the statutory provision under which they were suspended in April of 1967, is unconstitutional in that it authorizes the Insurance Commissioner to suspend a company without notice or opportunity to be heard before an impartial tribunal. Plaintiff concludes that this section is unconstitutional on its face and constitutes an unconstitutional delegation of power to an agency. This is precisely the issue that plaintiff raised in the state court suit and in the original federal action, Civil Action No. 42510. A three-judge court was convened and stayed all federal proceedings pending the outcome in the state court. As noted above, the Dauphin County Court vacated the suspension notice without deciding the constitutional issue. While admittedly the constitutionality of section 202 has not yet been .decided it appears to this Court that plaintiff had its day in court and, in fact, had its position vindicated when the state court refused the Commissioner’s request for a statutory liquidator The plaintiff company is not presently under a section 202 suspension, nor is there anything except plaintiff’s bare conclusion
The Court has carefully considered defendants’ motion to dismiss on the ground that the complaint fails to state a ground upon which relief can be granted, as well as the other bases enumerated, and finds them to be without merit. Therefore, in accord with the foregoing opinion, the Court makes the following rulings:
ORDER
And now, to wit, this 15th day of July, A.D.1971, it is ordered that plaintiff’s motion to substitute Herbert S. Denenberg for George F. Reed, be and the same is hereby granted.
It is further ordered that plaintiff’s motion to have a three-judge court convened be and the same is hereby denied.
It is further ordered that defendants’ motion to dismiss be and the same is hereby denied.
It is further ordered that the parties to this action appear before this Court on August 9, 1971 at 10:00 o’clock A.M. in Courtroom No. 11 in the United States District Court for the Eastern District of Pennsylvania, at which time evidence will be taken on plaintiff’s cause of action before Chief Judge John W. Lord, Jr.
. The action was originally brought against the Commonwealth and George F. Reed, Insurance Commissioner. Plaintiff has filed a suggestion to change name of the Insurance Commissioner to Herbert S. Denenberg, who succeeded George F. Reed. The Court will grant the motion.
. The Insurance Department Act of 1921, as amended, The Insurance Company Law of 1921, as amended, The Fire Marine and Inland Marine Rate Regulatory Act of 1961, as amended, are generally referred to as the Statutory Regulations of Insurers.
. The plaintiff also minutely detailed in the first half of their 36 page complaint the problems encountered by them in the Dauphin County Court and complain that the action in that Court was unconstitutional.
. Plaintiff asserts that the March 18 examination was undertaken in an effort to find additional facts which would support another suspension order.