312 F.Supp. 725 (E.D.Wis. 1970), 70-C-221, Babbitz v. McCann

Docket Nº:70-C-221.
Citation:312 F.Supp. 725
Party Name:Sidney G. BABBITZ, M.D., Plaintiff, v. E. Michael McCANN, District Attorney of Milwaukee County, Herbert J. Steffes, Judge of the Circuit Court, Criminal Division, Milwaukee County, Defendants.
Case Date:May 11, 1970
Court:United States District Courts, 7th Circuit, Eastern District of Wisconsin
 
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Page 725

312 F.Supp. 725 (E.D.Wis. 1970)

Sidney G. BABBITZ, M.D., Plaintiff,

v.

E. Michael McCANN, District Attorney of Milwaukee County, Herbert J. Steffes, Judge of the Circuit Court, Criminal Division, Milwaukee County, Defendants.

No. 70-C-221.

United States District Court, E.D. Wisconsin.

May 11, 1970

Page 726

Nathaniel Rothstein, Milwaukee, Wis., for plaintiff.

E. Michael McCann, Dist. Atty., Milwaukee County, Milwaukee, Wis., for defendants.

DECISION and ORDER

MYRON L. GORDON, District Judge.

The plaintiff seeks the convening of a three-judge district court and an order enjoining a state criminal prosecution which is currently pending against him in the circuit court of Milwaukee county.

The plaintiff brought an earlier action, No. 69-C-548, in which he sought declaratory and injunctive relief against the same state prosecution of which he now complains. In that case, a three-judge district court was convened, 306 F.Supp. 400, and it declared unconstitutional those sections of the Wisconsin statutes under which the plaintiff is being prosecuted. 310 F.Supp. 293. The three-judge court also concluded that injunctive relief against the pending state prosecution would be inappropriate.

Subsequently, the state circuit court denied a request that it dismiss the pending charges. The plaintiff urges that the state circuit court's action now justifies the issuance of an injunction by a three-judge federal district court.

The first question which the present application raises is whether a three-judge district court should be convened. In my opinion it should not.

The three-judge district court in No. 69-C-548 has already held that the statute in question is unconstitutional. Accordingly, there is no outstanding substantial federal question present which could require the convening of a three-judge district court. Turner v. City of Memphis, Tennessee, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962); Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962).

The second question which the plaintiff's present suit presents is whether injunctive relief is currently appropriate. The decision of the three-judge district court in case No. 69-C-548 is also dispositive of this issue. The latter court's ruling was made only after a full opportunity for the submission of briefs and for oral argument. In my opinion, further...

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