Appeal from the United States District Court for the Northern District of Illinois, Eastern Division 72-C-2941. WILLIAM J. LYNCH, Judge.
Cummings, Adams*fn* and Sprecher, Circuit Judges.
On December 3, 1971, while driving his own automobile, Joseph Valentino was involved in an accident with another car which resulted in damages to persons and property. Valentino carried no automobile insurance. On October 27, 1972, the Secretary of State of Illinois revoked Valentino's drivers license because Valentino was unable to post security and file proof of financial responsibility, as required by the applicable sections of the Illinois Motor Vehicle Code.*fn1 At the time of the accident, Valentino was employed by the American Indian Center as a school bus driver for its Head Start Program.
After his license had been suspended, Valentino sought a hearing to determine his eligibility for a restricted driver's permit.*fn2 The hearing was scheduled for November 17, 1972, but when Valentino appeared he was informed that the Secretary of State does not issue restricted permits when a license has been suspended for failure of the operator to meet the financial responsibility requirements of the Illinois Code.
On November 21, 1972, Valentino filed suit, individually and on behalf of a class, alleging that the refusal of the Secretary of the State to issue a restricted permit to him while granting such restricted permits to persons whose licenses had been revoked for other violations of the Motor Vehicle Code, such as reckless driving or driving while intoxicated, was an arbitrary and invidious discrimination in violation of the Equal Protection Clause. Valentino requested a mandatory injunction to direct the Secretary of State to issue a permit to him, and, on behalf of the class, to require the Secretary to issue restricted driving permits to persons otherwise qualified except for the financial responsibility requirements.
Valentino filed an affidavit in support of his motion for a temporary restraining order, in which he alleged that he would lose his job if he did not get a restricted driving permit. He also stated in the affidavit that the accident in question was "my first accident in 27 years of driving and I have never received a ticket for any other moving violation." On November 28, 1972, the district court entered a temporary restraining order requiring that the permit be issued, but on December 7, 1972, the court dissolved the temporary restraining order and dismissed the case.
Valentino then filed motions to vacate the dismissal and to reinstate the temporary relief, to convene a three-judge court, and to determine the propriety of a class action. The Secretary of State filed objections to the motion to vacate the dismissal alleging that Valentino, contrary to what was stated in the affidavit, had been convicted of six moving violations in the past four years. On December 15, 1972, the district court reinstated the complaint but denied the motion for temporary relief, denied the motion to certify the matter as a class action, and denied the motion to convene a three-judge court.
Valentino then petitioned this Court for a writ of mandamus requiring that a three-judge court be convened and for an injunction allowing him a restricted driving permit pending appeal. This Court granted the injunction and issued the writ requiring a three-judge court to be convened.
After remand, Valentino filed a motion for summary judgment, and the case was argued before the three-judge court on May 28, 1974. On October 27, 1974, Valentino's financial responsibility suspension expired and his drivers license was restored. The single district judge, in January, 1975, on his own motion, raised the issue of mootness and set a briefing schedule on that issue. In March, 1975 Valentino filed a motion to reconsider the order that had denied the class action. The single district court judge denied the motion to reconsider and on April 17, 1975 the three-judge court dismissed the case as moot.
Valentino has appealed from the order dismissing the case, contending that (1) this is a proper class action under Rule 23, and (2) the case is not moot.
The first question we must address is whether this Court has jurisdiction of an appeal from a three-judge court. 28 U.S.C. § 1253 states:
Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any [court] action, suit or proceeding required by an Act of Congress to be heard and determined by a district court of three judges.
In the past, for cases involving appeals from the grant or denial of an injunction by a three-judge court, the procedure was to appeal directly to the Supreme Court. However, in MTM, Inc. v. Baxley, 420 U.S. 799, 43 L. Ed. 2d 636, 95 S. Ct. 1278 (1975), a three-judge court had dismissed the complaint without prejudice, because, it stated, federal intervention would have been ...