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LANDRY v. DALEY

June 5, 1968

LAWRENCE LANDRY ET AL., PLAINTIFFS,
v.
RICHARD J. DALEY, MAYOR OF THE CITY OF CHICAGO, COOK COUNTY, ILLINOIS; JAMES CONLISK, SUPERINTENDENT OF POLICE OF THE CITY OF CHICAGO, ILLINOIS; JOHN S. BOYLE, CHIEF JUDGE OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS; JOHN J. STAMOS, STATE'S ATTORNEY OF COOK COUNTY, ILLINOIS; RAYMOND F. SIMON, CORPORATION COUNSEL OF THE CITY OF CHICAGO, ILLINOIS; JOSEPH I. WOODS, SHERIFF OF COOK COUNTY, ILLINOIS; RICHARD J. ELROD, ASSISTANT CORPORATION COUNSEL, CITY OF CHICAGO, DIVISION OF ORDINANCE ENFORCEMENT; MAURICE W. LEE, MAGISTRATE, CIRCUIT COURT OF COOK COUNTY, ILLINOIS; JOHN S. LIMPERIS, MAGISTRATE, CIRCUIT COURT OF COOK COUNTY, ILLINOIS; JOHN T. BURKE, JOSEPH RATKVICH AND ROBERT KULOVITZ, POLICE OFFICERS OF THE CITY OF CHICAGO, DEFENDANTS.



Before Hastings, Circuit Judge, and Hoffman and Will, District Judges.

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

OPINION

In the present context of this suit, plaintiffs seek declaratory and injunctive relief from the threatened and actual enforcement of certain Illinois statutes on the ground that the defendants have applied and threaten to continue to apply these statutes in an unconstitutional manner for the purpose of discouraging the plaintiffs' civil rights activities.*fn1 Originally, the complaint challenged both the enforcement of these statutes and two municipal ordinances of the City of Chicago.*fn2 It alleged two bases for relief. The first was that these statutes and ordinances were unconstitutionally vague, indefinite, and overly broad regulations of speech and assembly. The second was that these statutes and ordinances were being enforced by county and municipal officials against the plaintiffs and others in bad faith for the purpose of harassing plaintiffs' exercise of protected expression and with no expectation of ultimately obtaining convictions, but knowing that plaintiffs' conduct did not violate the statutes and ordinances. At the time the plaintiffs filed their complaint, they moved that a three-judge court be convened to hear and determine the issues presented therein.

A preliminary inquiry was made by the district court to determine the sufficiency of the complaint and whether or not it was appropriate to convene a three-judge court. The complaint was found to raise several substantial constitutional issues and to allege a formal basis for equitable relief.*fn3 It was further determined that plaintiffs' claims regarding the challenged state statutes presented questions which under the provisions of 28 U.S.C. § 2281, were solely within the competency of a three-judge court. The plaintiffs' allegations in regard to the municipal ordinances, however, were found to be properly triable before a single judge. Accordingly, the claims relating to the municipal ordinances were severed from those regarding the state statutes and only the latter were certified to this Court.*fn4

A determination of the propriety or impropriety of the application of these statutes to the plaintiffs' conduct was held in abeyance, and a hearing was held by this Court, dealing with only the plaintiffs' challenges to the constitutionality of the Illinois "Mob Action," "Resisting or Obstructing a Peace Officer," and "Intimidation" statutes. An opinion disposing of these issues was filed by the Court on March 4, 1968.*fn5 Sub-sections (a)(2) of the "Mob Action" statute*fn6 and (a)(3) of the "Intimidation" statute*fn7 were found to be vague and overly broad. The remaining sub-sections of these statutes and the "Resisting or Obstructing a Peace Officer" statute*fn8 were found to be consistent with principles of substantive and procedural due process. A judgment order was then entered declaring the indicated sub-sections of the "Mob Action" and "Intimidation" statutes unconstitutional, null, and void under the due process clause of the Fourteenth Amendment to the Constitution of the United States. The remainder of each of these statutes and the "Resisting" statute were declared valid.

Since this judgment, prosecutions against certain plaintiffs under sub-section (a)(2) of the "Mob Action" statute have been dismissed by the defendants. There were no pending prosecutions under sub-section (a)(3) of the "Intimidation" statute. Therefore, the questions presently before this Court relate only to the propriety or impropriety of the application of certain valid state statutes to the plaintiffs' activities. Also pending before the Court is a motion by all the defendants to dismiss the action on the ground that principles of comity, as well as the provisions of Title 28, § 2283, require abstention.

Section 2281, Title 28 of the United States Code, simply requires that a claim of constitutional invalidity directed at a state statute be heard and determined by a three-judge court if injunctive relief is sought. It does not indicate whether other claims must be heard and determined by a three-judge court when joined with a claim requiring a three-judge court.

It is apparent, however, that a three-judge court would not be necessary to hear and determine plaintiffs' application for injunctive relief if it had rested solely on the ground that defendants are misusing the statutes to violate plaintiffs' constitutional rights. See Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941); Ex Parte Bransford, 310 U.S. 354, 359-361, 60 S.Ct. 947, 84 L.Ed. 1249 (1940). The Supreme Court noted in Phillips:

    Some constitutional or statutory provision is the
  ultimate source of all actions by state officials.
  But an attack on lawless exercise of authority in a
  particular case is not an attack upon the
  constitutionality of a statute conferring the
  authority even though a misreading of the statute is
  invoked as justification. At least not within the
  Congressional scheme of [the predecessor of § 2281].
  312 U.S. at 252, 61 S.Ct. at 484.

Nevertheless, the claims presently before this Court are, presumably, pendent to the claims upon which this Court's jurisdiction was properly invoked. Hence, there remains the question whether this court, having disposed of plaintiffs' claim that the challenged statutes are constitutionally invalid, has and must exercise jurisdiction over the other claims in the complaint.

The Supreme Court has considered the jurisdiction of a three-judge court in several cases where claims of a statute's constitutional invalidity were joined with other claims. In the most recent case, Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960), the Court held that a three-judge court is necessary when injunctive relief is sought on grounds of the unconstitutionality of a statute, even though the statute is also challenged on other grounds. The Court further held that the three-judge court has jurisdiction over all claims raised against the statute. Id. at 84-85, 80 S.Ct. 568.

The Court's holding in Florida Lime and Avocado Growers, Inc. v. Jacobsen, is consistent with its earlier decisions in Railroad Commission of State of California v. Pacific Gas and Electric Co., 302 U.S. 388, 58 S.Ct. 334, 82 L.Ed. 319 (1938) and Louisville and Nashville Railroad Co. v. Garrett, 231 U.S. 298, 34 S.Ct. 48, 58 L.Ed. 229 (1913). Both those cases involved rate orders of state administrative bodies that were being challenged on various state and federal grounds, including that of constitutional invalidity. The Court held in both cases that the three-judge court had jurisdiction "to determine all the questions in the case, local as well as federal." 231 U.S. at 303, 34 S.Ct. at 50, 302 U.S. at 391, 58 S.Ct. at 337.

In these three cases all the issues concerned the validity of the statute or administrative order, each presenting a different challenge. Consequently, they do not control the three-judge court's jurisdiction of claims not challenging the validity of a statute or administrative order.

Yet, on one occasion the Court has held that a three-judge court's jurisdiction extended to questions other than the validity of a statute or administrative order. See Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375 (1932). In the Sterling case, the plaintiffs sought an injunction restraining state officials from enforcing executive orders of the Governor of Texas declaring martial law and regulating oil production. The grounds of attack were: that the orders violated the federal constitution, that they violated the state constitution, that they were not authorized by ...


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