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 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. ...