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December 28, 1967


The opinion of the court was delivered by: Will, District Judge.


This is a class action, brought by the plaintiffs pursuant to Rule 23(a)(1)(3) of the Federal Rules of Civil Procedure on their own behalf and on behalf of all others similarly situated, seeking declaratory and injunctive relief. Some of the individual plaintiffs are negro citizens who currently face criminal prosecution before the Circuit Court of Cook County, Illinois. These prosecutions arose out of a series of demonstrations taking place in Chicago, Illinois. Plaintiff, ACT, is an unincorporated association, maintaining offices in Chicago, Illinois, among the purposes of which is to secure negro citizens their federal rights and to end all forms of racial segregation and discrimination. To obtain these objectives, it engages in a variety of protest activities, including picketing, demonstrations, rallies, mass meetings, voter registration drives, community organization and publication. Plaintiffs, Lawrence Landry, Robert Lucas, Robert Brown and Michael Rogers are negroes and sue as representatives of the class of all negroes in the City of Chicago. Defendants are either officers of the City of Chicago, Illinois, or officers of the State of Illinois.

It is asserted that the jurisdiction of the Court over the Complaint arises under Title 28 U.S.C. §§ 1331, 1332, 1343(3), (4), 2201, 2202, 2281 and 2284; Title 42 U.S.C. §§ 1981, 1983 and 1985; and the Constitution of the United States, particularly, the First, Fourth, Fifth, Sixth, Eighth, Tenth, Thirteenth, Fourteenth and Fifteenth Amendments thereto.

The complaint alleges that the defendants have purposefully entered into a plan or scheme of concerted and joint action among themselves and with other persons unknown to the plaintiffs to deprive the plaintiffs of rights, privileges, and immunities secured to them by the Constitution and laws of the United States. Pursuant to this plan, the defendants have allegedly prosecuted and threatened to prosecute the plaintiffs and other members of the class they represent under color and authority of certain statutes of the state of Illinois and certain ordinances of the City of Chicago. It is alleged that certain plaintiffs and those they represent have been arrested without any warrants of any kind or probable cause while peacefully demonstrating, that prosecutions based on these statutes and ordinances have been instituted against these plaintiffs, and that they have been held on unreasonable and exorbitant bail. The complaint asserts that these arrests and prosecutions, as well as threats of future enforcement of the statutes and ordinances, have not been made by defendants with any expectation of securing valid convictions, but rather are part of a plan to employ arrest, detention on excessive bail and threats of prosecution to harass plaintiffs and their supporters and discourage them from asserting and exercising their federal rights.

The complaint also alleges that the state statutes and city ordinances under which this plan or scheme has been effectuated are unconstitutional on their face.*fn1 It is contended that these statutes and ordinances are vague and indefinite; they permit a construction which would violate plaintiffs' First Amendment guarantees as well as due process of law.

It is asserted that the impact of the plan allegedly conceived and implemented by the defendants and the possibility of prosecution under these statutes and ordinances is to discourage and inhibit the lawful exercise by the plaintiffs and the class which they represent of freedom of expression, freedom of assembly, and the right to petition government for redress of grievances.

On the basis of these allegations, the plaintiffs seek: (1) the issuance of declaratory judgments declaring that the state statutes and city ordinances in question are void on their face, null and void as violative of the Constitution of the United States, and/or as applied to the conduct of the plaintiffs herein, (2) the issuance of a permanent injunction restraining the defendants, their agents and attorneys from the enforcement, operation, or execution of any of these statutes and ordinances, and (3) the issuance of a permanent injunction restraining the defendants, their agents, and attorneys from impeding, intimidating, hindering, and preventing plaintiffs, or members and supporters of ACT from exercising the rights, privileges, and immunities guaranteed to them by the Constitution and laws of the United States. The plaintiffs also move that a three-judge court be convened pursuant to Section 2281 and 2284, Title 28, of the United States Code to hear and determine the issues presented herein. Pending a hearing and determination by a three-judge court, plaintiffs seek the issuance of a temporary injunction restraining the defendants, their agents, attorneys and all others acting in concert with them from enforcing in any way the provisions of the statutes and ordinances in question or from instituting or undertaking any proceedings whatsoever pursuant to these statutes and ordinances.*fn2

Pursuant to Rule 12 of the Federal Rules of Civic Procedure, both the state and city defendants have moved to dismiss this action. Defendants present omnibus motions. They assert, inter alia, the following grounds: (1) this Court has no jurisdiction over the matters presented; (2) the complaint states insufficient allegations to grant relief to plaintiffs; (3) the complaint fails to state a claim upon which relief can be granted; (4) the complaint does not disclose irreparable injury or harm of such a nature as to justify equitable relief; (5) the plaintiffs have an adequate remedy at law since their constitutional claims may be asserted in the proceedings now pending in the state courts; (6) the doctrine of federal abstention is applicable and should be utilized in this proceeding to allow the state courts of Illinois an opportunity to adjudicate the areas within their particular competence; (7) this Court is barred by Title 28, United States Code, Section 2283, from entering an injunction against the defendants in regard to those criminal proceedings currently pending in the Illinois state courts, and (8) the complaint makes no specific factual allegations as to the applicability of the Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Thirteenth and Fifteenth Amendments and fails to demonstrate the manner in which these amendments apply so as to void the statutes and ordinances in question.

The Scope of the Present Inquiry

The plaintiffs seek to have a three-judge court convened pursuant to Sections 2281 and 2284, Title 28, of the United States Code to determine the constitutional questions raised in the complaint. Section 2281 provides as follows:

    An 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 § 2284 of this Title.

The purpose of this section is to provide procedural protection against the improvident invalidation of state legislation by a single federal judge.*fn3 It assures the collective judgment of three federal judges whenever a plaintiff seeks to enjoin a state regulatory scheme upon constitutional grounds. Concomitant to this collective judgment is the provision of a direct appeal to the Supreme Court.*fn4 Accordingly, whenever an application for such relief is addressed to a district court, a single judge's inquiry is limited to whether it is appropriate to convene a three-judge court.

The rule established by the early cases dealing with the powers of a single judge when such injunctive relief was sought was that a single judge could not dismiss such an action on the merits.*fn5 This doctrine was qualified, however, by the Supreme Court in the case of Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1934), where it was held that a single judge could dismiss the action for want of jurisdiction and that such jurisdiction was lacking if the federal constitutional claim was insubstantial.*fn6 Although it was recognized in Poresky that a single judge could examine the substance of a constitutional question before the convening of a three-judge court, the earlier rule has continued to have its influence. Title 28, United States Code, Section 2284(5), currently provides that a single judge "shall not * * * dismiss the action or enter a summary or final judgment." This language was added to the three-judge court act in 1942*fn7 and would seem to suggest a codification of the earlier rule.*fn8 Nevertheless, decisions subsequent to this amendment to the act indicate that while a single judge's authority is circumscribed, it is not so limited as this language would seem to suggest.*fn9

The most recent Supreme Court decision involving this question is Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1961). In Idlewild the Court indicated that a single judge's inquiry "is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute." Id. at 715, 82 S.Ct. at 1296. If those criteria are met, it is "impermissible for a single judge to decide the merits of the case, either by granting or by withholding relief." Id. at 715, 82 S.Ct. at 1296. This would seem to represent the present limits of a single judge's power when an application for a three-judge court is addressed to a district court. See Stamler v. ...

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