three-judge court decision applying Hackner to conclude that complaint could be amended to properly substitute Attorney General in place of Secretary of State as defendant; “dismissal for want of jurisdiction due to lack of a case or controversy based on the ground that plaintiffs have named the wrong defendant would be improper and, under other circumstances, we would allow plaintiffs the opportunity to amend their complaint to substitute a proper defendant”
How later courts described this case
- three-judge court decision applying Hackner to conclude that complaint could be amended to properly substitute Attorney General in place of Secretary of State as defendant; “dismissal for want of jurisdiction due to lack of a case or controversy based on the ground that plaintiffs have named the wrong defendant would be improper and, under other circumstances, we would allow plaintiffs the opportunity to amend their complaint to substitute a proper defendant”
Written by the judges who cited it.
The opinion
MULLIGAN, Circuit Judge
(concurring) :
As the majority opinion points out, this alleged case not only lacks justiciability but is not at all appropriate for a three-judge court. Counsel seeks no injunctive relief because the City Board of Elections, which is charged with enforcing the challenged statute, is a plaintiff instead of a defendant and, in any event, has since been replaced by a different board with different commissioners. There is no adversary status here and • there is no real controversy. My only reason for a separate concurrence is that I cannot agree that the volunteer registrars and the registration organizations have any standing to urge even the establishment and infringement of franchise claims. I do not think that Bishop v. Lomenzo, 350 F.Supp. 576 (E.D.N.Y. 1972) which purports to distinguish Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972) can survive the holding of Aguayo v. Richardson, 473 F.2d 1090, 1099-1100 (2d Cir. 1973) where Judge Friendly indicated that some members of the interested organization must be at least potentially affected by the offending statute. There is no showing here that the voluntary registrars or the members of the organizations have been in any way affected actually or potentially by the statute. On the contrary, it is reasonable to suppose that all are fully and freely registered to vote.