Thomas Aries Scott v. Edward A. Hill

McCREE, Circuit Judge

(concurring in part and dissenting in part).

If the complaint had sought only to stay the processing of Scott’s appeal in the criminal prosecution, I would vote to affirm its dismissal. However, since it also asked the court to order a special election of the Court of Appeals from constitutionally apportioned districts, I would reverse and remand for the convening of a three-judge court to consider this prayer.

I agree that in requesting that “a temporary injunction be issued prohibiting the Court of Appeals of Kentucky to take any action on this case,” appellant seeks to enjoin a stage of a criminal prosecution — -an appeal. See Younger v. Harris, 401 U.S. 37 , 57 n., 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971) (Brennan, J., concurring). As the majority observes, the central holding in Younger is that a federal court should not enjoin state criminal proceedings that are conducted in good faith and afford a defendant the opportunity to assert the rights sought to be vindicated by such an injunction. There is no allegation here that the prosecution was brought in bad faith or was intended to deny appellant or any others similarly situated any constitutional right. At most, appellant argues *642 that there is a good faith difference between him and the prosecution whether there were “procedural due process” errors in his state criminal trial.

Accordingly, there is nothing to indicate that appellant’s remedies, assuming he has a right, will in any way be inadequate if the state court proceedings are allowed to continue without further hindrance. 1 “[T]he threat to the plaintiff’s federally protected rights” is not “one that cannot be eliminated by his defense against a single criminal prosecution.” Younger v. Harris, 401 U.S. at 46 , 91 S.Ct. at 751 . Under Younger v. Harris, then, no injunction to delay these proceedings pending a redistricting should be issued. It is axiomatic in the law of three-judge District Courts that a substantial constitutional question is not presented when an issue, whatever its continuing vitality as a subject for academic debate, has been squarely decided by the Supreme Court. California Water Service Co. v. City of Redding, 304 U.S. 252 , 58 S.Ct. 865 , 82 L.Ed. 1323 (1938). Since the Younger decision clearly prohibits the relief prayed for, no substantial constitutional question is raised, and the District Court did not err in this respect in refusing to convene a three-judge District Court.

However, I am unable to agree with the majority that the entire action is “directly controlled” by the Younger line of authority. I conclude that remand is necessary because, in addition to seeking a stay, appellant also prayed:

2. That the Court declare that the Constitution and Statutes of the Commonwealth of Kentucky be declared unconstitutional insofar as they provide for a manner of election of and redistricting of the Court of Appeals of the Commonwealth of Kentucky in a manner offensive to the 14th Amendment of the Constitution of the United States. K.R.S. 21.020.

* * X X X X

4. That the Court require the Governor of Kentucky, Louis (sic) B. Nunn to call a special session of the State Legislature to reapportion the Court of Appeals of Kentucky.

*643 5. That the Court be reapportioned in a manner similar to the congressional reapportionment.

*X- *X* * * 'X- -X-

7. That upon reapportioning the Court of Appeals into seven proper judicial districts a special election be called for the purpose of electing judges in compliance with the new standards of apportionment.

If the complaint had contained only these prayers, I believe we would unanimously hold that a three-judge court should have been convened. Buchanan v. Rhodes, 400 F.2d 882 (6th Cir. 1968) (per curiam). No reason appears, nor does the majority opinion suggest one, to require a different result solely because there is also a prayer to stay a stage of a state criminal proceeding.

The majority opinion emphasizes that appellant “represents only his own specific interest in equal protection and due process of the law under the Fourteenth Amendment, which assertedly will be denied him if the present Kentucky Court of Appeals reviews his conviction.” Apparently, the majority would require a federal reapportionment suit to be brought as a class action. Nothing in Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962), or its progeny imposes such a requirement. Indeed, case law subsequent to that decision suggests the contrary.

In Baker , which was brought as a class action, the Court did not hold that only a class could bring the suit. The Court did not even discuss the issue, although it did discuss the nature of the rights which the plaintiffs asserted:

The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-a-vis voters in irrationally favored counties. A citizen’s right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution * * *. It would not be necessary to decide whether appellants’ allegations of impairment of their votes by the 1901 apportionment will, ultimately, entitle them to any relief, in order to hold that they have standing to seek it. If such impairment does produce a legally cognizable injury, they are among those who have sustained it. * * * “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 1 Cranch 137, 163 , 2 L.Ed. 60 .

369 U.S. at 207-208 , 82 S.Ct. at 705 . The focus of the Court was obviously on the personal and individual nature of the right asserted. It is well-established that classifications created by states may be challenged by a single member of the affected class in his own behalf. See, e. g., Carrington v. Rash, 380 U.S. 89 , 85 S.Ct. 775 , 13 L.Ed.2d 675 (1965). In Avery v. Midland County, 390 U.S. 474 , 88 S.Ct. 1114 , 20 L.Ed.2d 45 (1968), an individual plaintiff, as a taxpayer and voter, successfully challenged the method of selecting county commissioners in his county. The Court in that case emphasized the plaintiff’s individual right of having his vote count equally with those of other county residents. 390 U.S. at 476 , 88 S.Ct. 1114 . Accord, Honsey v. Donovan, 236 F.Supp. 8 (D.Minn. 1964); Stokes v. Fortson, 234 F.Supp. 575 (N.D.Ga.1964); Calkins v. Hare, 228 F.Supp. 824 (E.D.Mich.1964); Moore v. Moore, 229 F.Supp. 435 (S.D.Ala.1964) (per curiam).

Since, as the majority concludes, appellant has raised at least a colorable claim of standing as a citizen of Kentucky to attack the apportionment of his state’s highest court, 2 his request for declaratory and injunctive relief should be viewed as separate and independent of his request for a stay of his state *644 court appeal. Therefore, viewing appellant’s complaint as requesting two distinct forms of relief, only the first of which is barred by Younger , and agreeing with the majority that appellant has raised substantial constitutional questions with regard to his alternate prayer for relief, I would remand for the convening of a three-judge court to hear the malapportionment contention. This is the usual procedure when an action is brought in federal court attacking the validity of a state districting statute. See, e. g., Calkins v. Hare, supra.

Once the three-judge court is convened, presumably it could decide to abstain from acting. Such a decision would be based not upon Younger v. Harris, which involved the granting of an injunction against state court proceedings, but upon the federal abstention doctrine. That doctrine, first enunciated by the Supreme Court in Railroad Commission v. Pullman Company, 312 U.S. 496 , 61 S.Ct. 643 , 85 L.Ed. 971 (1941), concerns the dismissal by a federal court of a case properly before it in order to allow a state court the opportunity to pass on the issue involved. Harrison v. N. A. A. C. P., 360 U.S. 167 , 79 S.Ct. 1025 , 3 L.Ed.2d 1152 (1959). 3 The decision whether to abstain, however, cannot be made by a single judge, or by a court of appeals upon review of a decision on the merits by a single judge, when a three-judge court should have been convened. Idle-wild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713 , 82 S.Ct. 1294 , 8 L. Ed.2d 794 (1962); Stratton v. St. Louis S. W. Ry., 282 U.S. 10 , 51 S.Ct. 8 , 75 L.Ed. 135 (1930).

For the above reasons, then, I would remand to the District Court with directions to convene a three-judge court to proceed further with appellant’s malap-portionment claims.

. Appellant might avoid the Younger bar by showing that the relief he seeks — ■ appeal before a Court of Appeals elected from equal-population districts — could not be obtained in the ordinary course of the state court proceedings currently in progress. It does not appear that appellant has raised the one-man, one-vote issue before the Kentucky Court of Appeals ; nor is it alleged that that court, which is bound as we are to follow the federal constitution, is not a proper forum for resolution of that issue. In any ease, appellant could appeal any adverse decision on that issue in the Kentucky court to the United States Supreme Court. At oral argument, appellant suggested the possibility that such review would be inadequate to vindicate this right because, if courts are treated as legislatures, then their decisions, once made, will be regarded as de facto legal even if their composition is held unconstitutional. See Maryland Committee v. Tawes, 377 U.S. 656, 675-676 , 84 S.Ct. 1429 , 12 L.Ed.2d 595 (1964) ; Fortson v. Morris, 385 U.S. 231, 235 , 87 S.Ct. 446 , 17 L.Ed.2d 330 (1966) ; Dawson v. Bomar, 322 F.2d 445 (6th Cir. 1963), which recognize as valid under the de facto doctrine acts of admittedly malapportioned legislatures. Thus appellant argues that he must have a decision and relief before, and not after, the Kentucky Court of Appeals rules since a decision made thereafter may result in his having won the battle — obtaining a redistricting of the Court of Appeals districts — and lost the war— having his death sentence affirmed as the lawful act of a de facto legal court. However, it would seem to be within the power of the Supreme Court to order a new appeal if it should determine that appellant’s claim is valid and he is entitled to relief. The Supreme Court has upheld the use of broad equitable powers, in what appellant says is the analogous case of malapportioned legislatures, to prohibit public bodies from acting on certain important questions. E. g., Buckley v. Hoff, 234 F.Supp. 191, 200-201 (D.Vt. 1964), modified per stipulation sub nom. Parsons v. Buckley, 379 U.S. 359 , 85 S. Ct. 503 , 13 L.Ed.2d 352 (1965). See also Beiser, The Status of a Malapportioned Legislature, 72 Dick.L.Rev. 553, 572 & nn. 117-20 (1968).

. It should be observed that appellant is undeniably a citizen of Kentucky. See Shaffer v. Tepper, 127 F.Supp. 892, 894-895 (RD.Ky.1955).

. Although the issue is not properly before us, it might be noted that abstention in cases involving constitutional issues is very limited, see Davis v. Mann, 377 U.S. 678 , 84 S.Ct. 1441 , 12 L.Ed.2d 009 (1964), Griffin v. County School Board, 377 U.S. 218 , 84 S.Ct. 1226 . 12 L.Ed.2d 256 (1964), McNeese v. Board of Education, 373 U.S. 668 , 83 S.Ct. 1433 , 10 L.Ed.2d 622 (1963), and is not necessary where the relevant state constitutional and statutory provisions are plain and unambiguous, Davis v. Mann, supra, 377 U.S. at 690. 84 S.Ct. 1441 .