Petition — D'Angelo v. Webb

its

Supreme Court, U. S |

FILED

cep 17 1916

| MICHAEL RODAK, JR. CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. @5-1160

SALVATORE D’'ANGELO, PRESIDENT OF THE

LOUISIANA BOARD OF PHARMACY, ET AL,

Petitioner,

versus

THE REVEREND JOHN WEBB, ET AL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

John R. Martzell

MARTZELL AND MONTERO

1010 Richards Building

New Orleans, Louisiana 70112

ATTORNEYS FOR PETITIONER

SCOFIELDS’ QUALITY PRINTERS. P O BOX 53096 N O. LA 70163 - 504/822 1611

TABLE OF CONTENTS

Page

I fo ce dc desc cduueussedeehenscapenees 2

BO SPS STEE TO LPT TCT CTCL T TUTE TTT TTT TCT 2

NE sey oh a Nekeudaeds cceeeeecyenes 2

Statutory and Constitutional Authority ........... 3

CE SPIED Sscacedsccecccosesesacegeucs 8

Reason for Granting Writ ................c eee eeee 10

EMT EST ET eT Te Tee TOT TEC TEE TT TTC TT 15

ED Ck on ce kneseenwenes aesusweane 16

APPENDIX

Opinion of Court of Appeals ..................... la

Judgment of Court of Appeals ................... 3a

Order of the District Court ........ccccccccccecees 5a

Significant Judicial

Correspondence ............. (See certified record)

TABLE OF AUTHORITIES

Cases:

Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7

RE a ee ee 11

Ex Parte Poresky, 290 U.S. 30, 78 L.Ed. 152, 54

SE PEED GuSceveedvedeeecckhebeechassbdeeuncese 11

Gonzales v. Automatic Employees Credit, 419

U.S. 90, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974) ....... 11

Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35

i EE occ cecekuseetasussenseodee ns 11,13

Gunn v. University Committee, 399 U.S. 383,

90 S.Ct. 2013, 26 L.Ed.2d 684 (1970) .............. 14

ii

TABLE OF AUTHORITIES (Continued)

Page

Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20

i EE ie Faccnsen dens bndeaases'sendnes 13

Hawkins v. Lawson, 379 F.Supp. 382 (W.D.

i Sind dike natiedeavdenehdekehanteeas a ¥aues 12

Idlewild Bon Voyage Liquor Corp. v. Epstein,

370 U.S. 113, 82 S.Ct. 1294, 8 L.Ed.2d 794

2 errs rer rr rere tr Peery ere 11

Kaufman v. O’Hagen, 401 F.Supp. 792, (S.D.

ERNE “nis Re ieee ei 11

Lewis v. Brown, 404 U.S. 819 (1971) .............. i3

Merced Rosa v. Harrero, 423 F.2d 591 (1st Cir.

Ee rere ye CP Te TT eer ee PCr Ey Tree 12

Mengelkoch v. Industrial Welfare Commis-

sion, 393 U.S. 83, 89 S.Ct. 60, 21 L.Ed.2d 215

EE wits Verte ee Cit eee iia ce eee bts tenes oaneen 14

Miller v. Biggs, 382 U.S. 805 (1965) ............... 13

Miller v. Smith, 236 F.Supp. 927(1stCir.1970)...... 12

MTM. Inc. v. Barley, 420 U.S. 799, 95S.Ct. 1278,

er IEE 6 occu ccductenuedopeecvones 11

Muskrat v. United States, 219 U.S. 346(1911)...... 13

Pena v. Nelson, 400 F.2d 493 (D. Arizona 1975)...... 11

Pennsylvania Public Utility Com. v. Penn-

sylvania Ry. Co., 382 U.S. 281, 282, 86 S.Ct.

Gi, OR Rae Ge CID oo civ ceccccwccsccvcncs 14

Pennsylvania State Board of Pharmacy v.

a & Fe ree errr 10

iil

TABLE OF AUTHORITIES (Continued)

Page

Shackman v. Arneburgh, 387 U.S. 427, 87S.Ct.

SGBR, 16 L..EG.BG GES (IGGB) nw wc ccccccccccscccces 14

Terry v. California State Board of Pharmacy,

395 F.Supp. 94 (N.D. Cal. 1975) .................. 9

Virginia Citizens Consumer Council, Inc. v.

Virginia State Board of Pharmacy, 373

F.Supp. 683 (E.D. Va. 1974), cert. granted

—— | : S.Ct. ___., Docket No. 74-

895 (Oral Arguments, November 1975) ......... 14

Wiley v. Brown, 400 U.S. 915 (1970) ............... 13

Wilson v. City of Port Lavaca, 391 U.S. 35, 88

S.Ct. 1502, 20 L.Ed.2d 636 (1968) ................ 14

OTHER AUTHORITIES

United States Constitution, Article III, Sec-

Pr Vo ule rs sceueane pauls bakes da nee 3

United States Constitution, Article III, Sec-

i hese CER MU Ueee eden eguhdh acess ness seb dn es 3

ee 4.8.9

ss even cnsecenecabeVencdeces 4.9

ED oc cwincnncevéucteceecadasws 7,13

28 U.S.C. § 1292 ( DCL ee eeeee aa eee ss eek ee 7

C. Wright, Federal Courts 34(1963) ................ 13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

SALVATORE D'ANGELO, PRESIDENT OF THE

LOUISIANA BOARD OF PHARMACY, ET AL,

Petitioner,

versus

THE REVEREND JOHN WEBB, ET AL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES:

Petitioner, Salvatore D'Angelo, President of the

Louisiana Board of Pharmacy, et al, prays that a writ

of certiorari issue to review the Judgment of the Unit-

ed States Court of Appeals for the Fifth Circuit en-

tered in this case on November 12, 1975. That decision

reversed and remanded the decision of the United

States District Court for the Eastern District of

Louisiana.

2

OPINIONS BELOW

The Opinion of the Court of Appeals (Appendix 1a)

is without published opinion, 524 F.2d 238, 239. The

decision of the District Court was unreported (cer-

tified copy Appendix 5a).

JURISDICTION

The decision of the Court of Appea!s was entered on

November 12, 1975. Appendix 3a. No petitions for re-

hearing or rehearing en banc were filed, and this peti-

tion for certiorari was filed within ninety (90) days of

that date. A thirty (30) day stay of the Court of Appeals’

Judgment has been granted to permit the filing of this

petition. This Court's jurisdiction is invoked under 28

U.S.C. § 1254(1).

QUESTIONS PRESENTED

1.

Does the United States Court of Appeals have

jurisdiction to review the dismissal by a United States

District Court of a petition for a three-judge court

when the dismissal is predicated on a refusal by the

Chief Judge of the Court of Appeals toconvene a three-

judge court because of a constitutionally insubstan-

tial issue?

2.

| Is an opinion by a United States Court of Appeals

finding a constitutionally substantial issue contrary

to a finding of aconstitutionally insubstantial issue in

a petition for a three-judge court by the Chief Judge of

the Circuit an impermissible “advisory opinion”?

STATUTORY AND CONSTITUTIONAL

AUTHORITY

The Third Article of the United States Constitution

provides:

“SECTION 1. The judicial Power of the

United States, shall be vested in one supreme

Court, and in such inferior Courts as the Con-

gress may from time to time ordain and estab-

lish. The Judges, both of the supreme and in-

ferior Courts, shall hold their Offices during

good Behaviour, and shall, at stated Times,

receive for their Services, a Compensation,

which shall not be diminished during their

Continuance in Office.

SECTION 2. The judicial Power shall cx-

tend to all Cases, in Law and Equity, arising

under this Constitution, the Laws of the Unit-

ed States, and Treaties made, or which shall be

made, under their Authority; — to all Cases

affecting Ambassadors, other public

Ministers and Consuls; — to all Cases of ad-

miralty and maritime Jurisdiction; — to Con-

troversies to which the United States shall bea

Party: — to Controversies between two or

more States; — between a State and Citizens of

another State; — between Citizens of different

States; — between Citizens of the same State

claiming Lands under Grants of different

4

States, and between a State, or the Citizens

thereof, and foreign States, Citizens or Sub-

jects.

In all Cases affecting Ambassadors, other

public Ministers and Consuls, and those in

which a State shall be Party, the supreme

Court shall have original Jurisdiction. In all

the other Cases before mentioned, the supreme

Court shall have appellate Jurisdiction, both

as to Law and Fact, with such Exceptions, and

under such Regulations as the Congress shall

make.

The Trial of all Crimes, except in Cases of

Impeachment. shall be by Jury; and such Trial

Shall be held in the State where the said

Crimes shall have been committed; but when

notcommitted within any State, the Trial shall

be at such Place or Places as the Congress may

by Law have directed.”

Section 2281 of the Judiciary Act, June 25, 1948, C.

646, 62 Stat. 968, Injunction against enforcement of

State statute, three judge court required. Title 28

U.S.C: § 2281, official text, p. 2.

Section 2284 of the Judiciary Act, June 25, 1948, C.

646, 62 Stat. 968, June 11, 1960, Pub. L. 86-507, § 1 (19), 74

Stat. 201. Three-judge district court; composition:

procedure, is set forth herein for the convenience of

the Court:

—_—

In any action or proceeding required by Act

of Congress to be heard and determined by a

district court of three judges the composition

and procedure of the court, except as

otherwise provided by law, shall be as follows:

(1) The district judge to whom the applica-

tion for injunction or other relief is presented

shall constitute one member of such court. On

the filing of the application, he shall im-

mediately notify the chief judge of the circuit,

who shall designate two other judges, at least

one of whom shall be a circuit judge. Such

judges shall serve as members of the court to

hear and determine the action or proceeding.

(2) If the action involves the enforcement,

operation or execution of State statutes or

State administrative orders, at least five days

notice of the hearing shall be given to the

governor and attorney general of the State.

If the action involves the enforcement,

operation or execution of an Act of Congress

or an order of any department or agency of tlie

United States, at least five days’ notice of the

hearing shall be given to the Attorney General

of the United States, to the United States at-

torney for the district, and to such other per-

sons as may be defendants.

Such notice shall ge given by registered

mail or by certified mail by the clerk and shall

be complete on the mailing thereof.

(3) In any such case in which an applica-

tion for an interlocutory injunction is made,

the district judge to whom the application is

made may, at any time, grant a temporary

restraining order to prevent irreparable

damage. The order, unless previously revoked

by the district judge, shall remain in force

only until the hearing and determination by

the full court. It shall contain a specific find- ‘

ing based upon evidence submitted to such

judge and identified by reference thereto, that

specified irreparable damage will result if the

order is not granted.

7

or execution of a State statute or order

thereunder, whenever it appears that a State

court of competent jurisdiction has stayed

proceedings under such statute or order pend-

ing the determination in such State court of an

action to enforce the same. if the action in the

State court is not prosecuted diligently and in

good faith, the district court of three judges

may vacate its stay after hearing upon ten

days notice served upon the attorney general

of the State. June 25, 1948, c. 646, 62 Stat. 968;

June 11, 1960, Pub.L. 86-507, § 1(19), 74Stat. 201.

For the convenience of the Court, Title 28, Section

1651, Writs of the same Act, June 25, 1948, c. 646, 62 Stat.

944, May 24, 1949, c. 139 § 90,63 Stat. 102 is also set forth

(4) In any such case the application shall

be given precedence and assigned for a hear- |

ing at the earliest practicable day. Two judges

must concur in granting the application. here:

(5) Any one of the three judges of the court

may perform all functions, conduct all

proceedings except the trial, and enter all

orders required or permitted by the rules of

civil procedure. A single judge shall not ap-

point a master or ordera reference, or hear and

determine any application for an _ in-

terlocutory injunction or motion to vacate the

Same,or dismiss the action, or enter a sum-

mary or final judgment. The action of a single

judge shall be reviewable by the full court at

(a) The Supreme Court and all courts es-

tablished by Act of Congress may issue all

writs necessary or appropriate in aid of their

respective jurisdictions and agreeabie to the

usages and principles of law.

(b) An alternative writ or rule nisi may be

issued by a justice or judge of a court which

has jurisdiction. June 25, 1948 c. 646, 62 Stat.

944, May 24, 1949. c. 139 § 90, 63 Stat. 102.

Section 1292 of the Judiciary Act, Title 28 U.S.C. In-

ioe terlocutory decisions may be found in the official text

. A district court of three judges shall, before at pages 1, 2.

final hearing, stay any action pending therein

to enjoin, suspend or restrain the enforcement

any time before final hearing.

STATEMENT OF THE FACTS

The facts before this Court are not substantive but

rather procedural and will be viewed in that light. The

piaintiffs, as a class, respondents herein, brought suit

against Salvatore D’Angelo as President of the

Louisiana Board of Pharmacy, etal, seeking a declara-

tion of unconstitutionality of LSA-R.S. 37:1225(11)

briefly referred to as the Professional Code

Prohibiting Advertising of Prescription Prices and for

an injunction under 42 U.S.C. § 1343 (3): 42 U.S.C.

§ 1983. More particularly, the plaintiffs requested a

three-judge Court under 28 U.S.C. § 2281. It is that re-

quest and denial of a three-judge Court which brought

the case to appeal to the Fifth Circuit.

The District Judge to whom the complaint was

allotted followed the custom of the United States Dis-

trict Court for the Eastern District of Louisiana by

forwarding the complaint with its request to the Chief

Judge without independent determination of facial

constitutional substantiality for convening a three-

judge Court.

Chief Judge Brown responded by means of a letter to

the District Judge (Appendix omitted) stating that he

would not convene a three-judge court since the com-

plaint lacked constitutional substantiality. Based on

the adverse determination of constitutional in-

substantiality by the Chief Judge, the District Court

dismissed the complaint.

The respondents appealed to the Court of Appeals

or the Fifth Circuit, both on the procedural issue and

the substantive issue of whether in fact a con-

stitutionally substantial issue had been presented.

Petitioners took the position that the Fifth Circuit

did not have the jurisdiction to review a decision by

the Chief Judge of the Circuit deciding constitutional

insubstantiality under 28 U.S.C. § 2281 and 2284. In

effect, the Fifth Circuit's review could and did result in

an order to its own Chief Judge to find the issue con-

stitutionally substantial. Secondly, the Appellees

below argued that if the function of a Chief Judge un-

der 28 U.S.C. § 2281 and 2284 was purely ministerial,

then the remedy is not appeal of his decision to the

Fifth Circuit but mandamus to the United States

Supreme Court.

The Fifth Circuit, in hearing oral argument, re-

quested that the respondents waive argument until

petitioner addressed the jurisdictional problems. The

Fifth Circuit panei listened carefully to appellant's

explanation of the problem before it and nevertheless

based its Judgment on the merits ofthe case as it held:

We disagree with the ruling of the District

Judge and are of the belief that plaintiffs have

presented a substantial constitutional ques-

tion by their suit — substantial within the

meaning of such decisions of the United States

Supreme Court as Bailey v. Patterson, 369 U.S.

31, 82 S.Ct. 549 (1962): Ex parte Poresky, 290

U.S. 30, 54 S.Ct. 3 (1933): Goosby v. Osser, 409

U.S. 512, 93 S.Ct. 854 (1973). See, e.g., Terry v.

California State Board of Pharmacy, N.D.Cal.,

1975, 395 F.Supp. 94, in which the California

10

statute similar to that involved here was

declared unconstitutional by a three-judge

court; Virginia Citizens Consum. Coun., Inc. v.

State Bd. of Pharm., E.D. Va. 1974, 373 F.Supp.

683, in which the Virginia statute to the same

effect was declared unconstitutional by a

three-judge court; and Pennsylvania State

Board of Pharmacy v. Pastor, 272 A. 2d 487

(1971), in wnich the Supreme Court of Penn-

Sylvania invalidated a state statute

prohibiting the advertising of prescription

drug prices.

Under the circumstances, the case is

remanded to the District Judge with direction

that he resubmit the plaintiffs’ request for a

three-judge court in this matter to the Chief

Judge of this Circuit.

REVERSED AND REMANDED

REASON FOR GRANTING WRIT

The decision of the Fifth Circuit Court of Appeals

raises serious questions ir the administration of the

three-judge court act. The decision of the District

Court makes clear that dismissal was predicated on

lack of jurisdiction.! The jurisprudence makes clear

1 Trial Record p. 4. lines 4-8"... the reason that I dismissed the

case was just because Judge Brown told me to dismiss the case:

that’s the sole and only reason I dismissed the case. If it can be

clearer than that, I don't know how.”

See also, Trial Record p. 18, lines 7-17". . .we used to make those

decisions; that it’s constitutionally insubstantial and we would get

kicked in the teeth ... we just bundled them up... and let Chief

Brown make the decision.”

11

that a District Judge may not proceed with a case seek-

ing both declarative and injunctive relief involving

the unconstitutionality of a state statute if the con-

stitutional issue is insubstantial.2 In the usual case,

that initial determination is made by the District

Judge. In the instant case, the Chief Judge made the

determination of constitutional insubstantiality,

refused to convene the three-judge court and directed

the District Court to enter an appropriate order. In the

premises, the District Court had no jurisdiction to

proceed and properly dismissed the complaint. In this

context the statement of the Court of Appeals that they

“disagree with the District Judge and are of the belief

that plaintiffs have presented a substantial con-

stitutional issue by their suit ...” is factually in-

correct. The District Court made no determination of

constitutional insubstantiality. Chief Judge Brown

made that determination and refused to convene the

three-judge court.

The difficulty is illuminated when the order of the

Court of Appeals on remand is considered. The Dis-

trict Judge is simply directed to resubmit the com-

plaint to the Chief Judge, buttressed now with the con-

trary opinion of three of his brothers on the Court of

Appeals. During oral argument, the Court of Appeal

panel disavowed either the power or desire to man-

2 Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 834, 34 L.Ed.2d 36 (1973):

Bailey v. Patterson, 369 U.S. 31, 82S.Ct. 549, 7 L.Ed.2d 519 (1962); Ex

Parte Poresky, 290 U.S. 30, 73 L.Ed. 152, 54 S.Ct. 3 (1933); Idlewild

Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 113, 82 S.Ct. 1294. 8

L.Ed. 794 (1962).

3 Gonzales v. Automatic Employees Credit, 419 U.S. 90,95 S.Ct.

289, 42 L.Ed.2d 249 (1974); MTM, Inc. v. Barley, 420 U.S. 799,95S.Ct.

1278, 43 L.Ed.2d 636 (1975); Goosby v. Osser, supra; Kaufman v.

O'Hagen, 401 F.Supp. 792 (S.D. N.Y. 1975): Pena v. Nelson, 400 F.2d

493 (D. Arizona 1975).

12

damus Chief Judge Brown. At this juncture the dif-

ficulties in the administration of the three-judge court

act which support “cert worthiness” become manifest.

The Court of Appeals did not determine that Chief

Judge Brown was powerless to determine con-

stitutional insubstantiality.4 At best the Court of

Appeals held that he decided it wrongly. Yet, the Court

of Appeals did not direct the convening of a three-

judge court since that power is vested in the Chief

Judge of the Circuit. At most, the Court of Appeals

directed the District Court to pass the issue by the

Chief Judge again. What the result wili be if Chief

Judge Brown is unpersuaded by the views of the panel

in this case is unknown. Will the District Judge be

compelled to dismiss the case again? Will the Court of

Appeals again review that determination? What

remedy is open to the Court of Appeals if it persists in

its opinion of constitutional substantiality? The cir-

cular result posited by these questions and their

possible answers leaves the litigants in confusion and

the administration of the Act in disarray.

The problem of course is caused by the fact that the

Court of Appeals arguably had no jurisdiction and

that mandamus to the Supreme Court of the United

States was the proper remedy. Respondents here

maintained in the Court of Appeals that the duty of the

Chief Judge to convene the three-judge court under 28

U.S.C. § 2281 and § 2284 is purely ministerial. If that be

so, then the remedy to compel a ministerial duty is not

4 Miller v. Smith. 236 F.Supp. 927 (1st Cir. 1970): Merced Rosa v.

Harrero, 423 F.2d 591 (ist Cir. 1970); Hawkins v. Lawson, 379

F.Supp. 382 (W.D. Ok]. 1974).

—

13

appeal to the same court of which the “minister” isa

member, but rather to this Court.5 This is the route

taken in similar cases.§ The logic of mandamus as a

remedy is reinforced by the result here. The Court of

Appeals was wrong in reversing the District Court

since dismissal is the proper disposition of such a

case when the issue is constitutionally insub-

stantial.” The order of the Court of Appeals to resub-

mit the petition to the Chief Judge is a bootless effort

since the Court of Appeals is powerless to grant the

relief requested. Absent the power to enforce its opin-

ion, the decision of the Court of Appeals is an “‘ad-

visory opinion.”

“(T)he oldest and most consistent thread in the

federal Jaw of justiciality is that the federal courts will

not give advisory opinions.” C. Wright, Federal

Courts 34 (1963) cited with approval Flast v. Cohen,

392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 1947 (1968); Musk-

rat v. United States, 219 U.S. 346 (1911). There was no

“case” or “controversy” before the Court of Appeals

because the party who had made the operative deci-

5 § 1651. Writs

(a) The Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in aid of

their respective jurisdictions and agreeable to the usages and

principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or

judge of a court which has jurisdiction. June 25, 1948 c. 646, 62 Stat.

944, May 24, 1949. c. 139 § 90, 63 Stat. 102.”

Ex Parte Bransford, 310 U.S. 354 (1940); Well] v. United States, 389

U.S. 90 (1967): Bankers and Life Casualty Co. v. Holland, 346 U.S.

379 (1953); U.S. v. Hankish, 362 F.2d 316 (4 Cir. 1972); Lyons v.

Davoren, 402 F.2d 890 (1 Cir. 1968): Stratton v. St. Louis S.W. Ry.

Co., 292 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135.

6 Miller v. Biggs, 382 U.S. 805 (1965); Wiley v. Brown, 400 U.S. 915

(1970): Lewis v. Brown, 404 U.S. 819 (1971).

~

7 Goosby v. Osser, supra.

14

sion on constitutional substantiality, Chief Judge

Brown, was not before that Court and was not subject

to its writ. Petitioner respectfully submits that the

Court of Appeals misconceived the “case” before it.

The only “case” before the Court of Appeals was

whether a District Judge properly dismisses a petition

for a three-judge court for lack of jurisdiction when

the Chief Judge refuses to convene the court because of

his determination that the issue was constitutionally

insubstantial. That issue was properly before the

Court of Appeals.® However, a review of Chief Judge

Brown's decision was not, and it is submitted, could

not be before the Court of Appeals. Hence, the opinion

of the Court of Appeals panel, while interesting and

weighty, is only “advisory” to Chief Judge Brown. If

Chief Judge Brown chooses not to take the advice.’ the

litigants are back where they started when the suit

was filed in July of 1974. Petitioners respectfully

Suggest that this is no way to administer a railroad

much less a statute.

The administration of the three-judge court act has

begotten frequent and complicated litigation. Con-

gress may or may not resolve the matter or complicate

it further. Petitioner earnestly requests that this Court

8 Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26

L.Ed.2d 684 (1970); Mengelkoch v. Industrial Welfare Commission,

393 U.S. 83, 89 S.Ct. 60, 21 L.Ed.2d 215 (1968); Wilson v. City of Port

Lavaca, 391 U.S. 35, 88 S.Ct. 1502, 20 L.Ed.2d 636 (1968): Shackman

v. Armeburgh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865 (1965):

Pennsylvania Public Utility Com. v. Pennsylvania Ry. Co., 382

U.S. 281, 282, 86 S.Ct. 423. 15 L.Ed.2d 324 (1966).

9 This Court has under submission the almost identical substan-

tive issue in Virginia Citizens Consumer Council, Inc. v. State

Board of Pharmacy, 373 F Supp. 683 (E.D. La. 1974). cert. granted,

I cctncensiia S.Ct. _ _, Docket No. 74-895 (Oral Argument.

November 1975)

15

accept certiorari in this matter and resolve the dilem-

ma before the matter becomes further entangled. The

latent hope that Chief Judge Brown will accede to his

brothers’ opinion and cut the Gordian knot does not

resolve the real issue rasied herein. The doctrine of

constitutional insubstantiality, once invoked, must

give rise to regular routes of review. The route sought

by respondents and embraced by the Court of Appeals

does not resolve the problem and simply relegates the

parties to a repeat performance. This Court should

clear the air.

CONCLUSION

For the reasons set forth above, petition for writ of

certiorari should be granted to review the judgment

and directive of the Fifth Circuit Court of Appeals to

the single district court judge of the Eastern District to

send the case back to the Chief Judge for another deter-

mination of constitutional substantiality to convenea

three judge court.

Respectfully submitted,

JOHN R. MARTZELL

Martzell and Montero

1010 Richards Building

New Orleans, Louisiana 70112

Telephone: 581-9065

Attorney for Petitioners

16

CERTIFICATE OF SERVICE

I, John R. Martzell, hereby certify that a copy of the

foregoing Petition for a Writ of Certiorari to the Unit-

ed States Supreme Court has been served on:

Jack Mark Stolier, Esq.

New Orleans Legal Assistance Corporation

3200 St. Bernard Avenue

New Orleans. Louisiana 70119

David A. Marcello, Esq.

Louisiana Center for the Public Interest

1222 Maison Blanche Building

New Orleans, Louisiana 70112

by placing same properly addressed in the United

States Mail with adequate postage affixed thereto on

this the ___. day of February, 1976.

JOHN R. MARTZELL

la

APPENDIX I

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 74-3431

THE REVEREND JOHN WEBB, ET AL.,

Plaintiffs-Appellants,

versus

SALVATORE D’ANGELO, President of the Louisiana

Board of Pharmacy, ET AL..,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

(November 12, 1975)

Before GOLDBERG and AINSWORTH, Circuit

Judges, and NICHOLS,* Associate Judge.

PER CURIAM:

In this classaction plaintiffs sought declaratory and

injunctive relief against defendants on allegations of

the unconstitutionality of La. R.S. 37:1225(11), a

Louisiana statutory provision which prohibits the

Of the U. S. Court of Claims, sitting by designation.

2a

publication. advertisement or promotion of the prices

of prescription drugs. Additionally, plaintiffs sought

the convening of a three-judge statutory court for the

hearing and determination of the case. The District

Judge submitted the request for the convening of the

three-judge court to the Chief Judge of this Circuit and

the request was denied. On that basis the District

Judge dismissed plaintiffs’ suit holding that the court

was without jurisdiction in the matter.

We disagree with the ruling of the District Judge and

are of the belief that plaintiffs have presented a sub-

stantial constitutional question by their suit — sub-

stantial within the meaning of such decisions of the

United States Supreme Court as Bailey v. Patterson,

369 U.S. 31, 82 S. Ct. 549 (1962); Ex parte Poresky, 290

U.S. 30,548. Ct. 3 (1933); Goosby v. Osser, 409 U.S. 512,

93 S. Ct. 854 (1973). See e.g., Terry v. California State

Board of Pharmacy, N. D. Cal., 1975, 395 F. Supp. 94, in

which the California statute similar to that involved

here was declared unconstitutional by a three-judge

court; Virginia Citizens Consum. Coun., Inc. v. State

Bd. of Pharm..E. D. Va., 1974,373 F. Supp. 683, in which

the Virginia statute to the same effect was declared un-

constitutional by a three-judge court; and Penn-

sylvania State Board of Pharmacy v. Pastor, 272 A. 2d

487 (1971), in which the Supreme Court of Penn-

sylvania invalidated a state statute prohibiting the

advertising of prescription drug prices.

Under the circumstances, the case is remanded to

the District Judge with direction that he resubmit the

plaintiffs’ request for a three-judge court in this

matter to the Chief Judge of this Circuit.

REVERSED AND REMANDED.

3a

APPENDIX II

United States Court of Appeals

For the Fifth Circuit

October Term, 1975

No. 74-3431

D. C. Docket No. CA-74-2055 “F”’

THE REVEREND JOHN WEBB, ET AL.,

Plaintiffs-Appellants,

versus

SALVATORE D’ANGELO, President of the Louisiana

Board of Pharmacy, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

Before GOLDBERG and AINSWORTH, Circuit

Judges, and NICHOLS,* Associate Judge.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court forthe

Eastern District of Louisiana, and was argued by

counsel;

* Of the U.S. Court of Claims, sitting by designation.

4a

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the order of

the District Court appealed from, in this cause be, and

the same is hereby, reversed; and that this cause be,

and the same is hereby remanded to the said District

Court in accordance with the opinion of this Court.

November 12, 1975

Issued as Mandate:

5a

APPENDIX III

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

THE REVEREND JOHN WEBB, et al

Civil Action

VERSUS No. 74-2055

SECTION “F”

SALVATORE D’ANGELO, et al

This matter, having come before the Court on this

date:

It is Ordered that plaintiffs’ motion to vacate is

granted, and the Court's Order of August 13, 1974, is

vacated.

The issue of constitutional insubstantiality, having

been determined adversely to plaintiffs by John R.

Brown, Chief Judge, United States Court of Appeals

for the Fifth Circuit:

It is Ordered that the convening of a three-judge

court is Denied. Since this Court is therefore without

jurisdiction, this action is dismissed without pre-

judice.

Dated this 4th day of September. 1974, New Orleans,

Louisiana.

/s/ LANSING L. MITCHELL

United States District Judge

[Filed: Sept. 4, 1974]