Appeal from the United States District Court for the Eastern District of Wisconsin. No. 71-C-659 JOHN W. REYNOLDS, Judge.
Swygert, Chief Judge, Pell, Circuit Judge, and Perry, Senior District Judge.*fn* Pell, Circuit Judge, dissenting.
PERRY, Senior District Judge.
In this appeal, plaintiffs-appellants seek a review of the refusal by a district judge to request the convening of a three-judge court and of the dismissal of their complaint for lack of jurisdiction.
The complaint attacks Ag 122, a general order of the Wisconsin Department of Agriculture ("regulation"), which prohibits chain distributor schemes as an unfair trade practice. Plaintiff corporations allege they were charged in Wisconsin state court actions with "promoting" such schemes in violation of the regulation. Joined by the individual plaintiff, they then brought suit in the United States District Court for the Eastern District of Wisconsin to enjoin the enforcement of the state regulation and to have it declared unconstitutional. Plaintiffs contend that "promotion" necessarily involves some protected speech and, among other things, that the regulation is overbroad and sweeps into constitutionally protected areas of free speech and association, thereby violating plaintiffs' First and Fourteenth Amendment rights. They argue their constitutional claims present a substantial constitutional question requiring the convening of a three-judge court.
Defendant state officials opposed plaintiffs' request for the convocation of a three-judge panel and moved to dismiss the complaint. The District Court judge in an Opinion and Order concluded the plaintiffs' constitutional claims were insubstantial and that he, therefore, was prohibited from requesting the convening of a three-judge court and was required to dismiss the complaint for lack of jurisdiction.
This court has jurisdiction to review the action of a one-man district court in dismissing a complaint instead of taking steps to convene a three-judge court. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962); Schackman v. Arnebergh, 387 U.S. 427, 87 S. Ct. 1622, 18 L. Ed. 2d 865 (1967); Money v. Swank, 432 F.2d 1140 (7th Cir. 1970); Hargrave v. McKinney, 413 F.2d 320 (5th Cir. 1969); see also C. Wright, The Law of Federal Courts (2nd ed. 1970) at 193 and D. Currie, Appellate Review of the Decision Whether or Not to Empanel a Three-Judge Federal Court. U. Chi. L. Rev. 37 (1969-70).
Although we can review, the question before this court is a narrow one. The constitutionality of the state regulation is not before this court. Nor should this court consider the facts and circumstances which surround appellants' efforts to promote chain distributorships, nor the alleged violations of the state regulation. If the federal claims are substantial, the issues and the merits are for consideration by a three-judge panel and this court does not express any opinion as to the ultimate resolution of the issues. Although this court is precluded from reviewing on the merits, it is not "powerless" to give guidance. Idlewild, supra, citing Stratton v. St. Louis S.W. Ry., 282 U.S. 10, 75 L. Ed. 135, 51 S. Ct. 8. Our function is to review the allegations of the complaint to determine whether a substantial federal constitutional question is presented and whether there is a question fairly open to debate which would entitle plaintiffs to the three-judge relief requested.
The case at bar came on upon a motion for a temporary restraining order, which the district judge denied. He then set a briefing schedule and the motions for the convening of a three-judge court and to dismiss were argued together in the court below.
The district judge in his opinion held, in effect, that Ag 122 was not unconstitutional, did not violate freedom of speech, was not void for vagueness, did not constitute undue burden on interstate commerce, did not intrude into an area preempted by the federal government, did not impair the obligation of contract, did not violate an individual's right to work and did not result in discriminatory enforcement.
Although he found there was not a substantial constitutional question raised, by the scope of his opinion he went to the merits and in effect entered a declaratory judgment. By such an opinion and his dismissal of plaintiffs' cause there is inescapably a determination by him that the regulation here in question is constitutionally valid and a determination as to injunctive relief. If federal jurisdiction exists he exceeded his authority. We find here it does exist and thus the single judge erred in holding that a three-judge court was not required and "erroneously invaded" the province of a three-judge court. We, therefore, are directing a three-judge court be convened to consider this litigation. Ex parte Northern Pac. R. Co., 280 U.S. 142, 144, 50 S. Ct. 70, 74 L. Ed. 233 (1929); Stratton v. St. Louis S.W.R. Co., 282 U.S. 10, 15, 51 S. Ct. 8, 75 L. Ed. 135 (1930); Idlewild, supra ; Schneider v. Rusk, 372 U.S. 224, 225, 83 S. Ct. 621, 9 L. Ed. 2d 695 (1963).
For his authority to dismiss the single judge relied on Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933). In Poresky, at page 32, the Supreme Court said:
The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint. Mosher v. Phoenix, 287 U.S. 29, 30, 77 L. Ed. 148, 53 S. Ct. 67; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, 77 L. Ed. 1062, 53 S. Ct. 549. The question may be plainly unsubstantial, either because it is "obviously without merit" or because "its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy." Levering & Garrigues Co. v. Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288; McGilvra v. Ross, 215 U.S. 70, 80, 54 L. Ed. 95, 30 S. Ct. 27.
While it is appropriate that a single District Judge to whom application is made for an interlocutory injunction restraining the enforcement of a state statute should carefully scrutinize the bill of complaint to ascertain whether a substantial question is presented, to the end that the complainant should not be denied opportunity to be heard in the prescribed manner upon a question that is fairly open to debate, the District Judge clearly has authority to dismiss for the want of jurisdiction when the question lacks the necessary substance and no other ground of jurisdiction appears . . . .
Section 2281 of Title 28 U.S.C., provides:
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 or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the ...