409 U.S. 512 (1973), 71-6316, Goosby v. Osser

Docket Nº:No. 71-6316
Citation:409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36
Party Name:Goosby v. Osser
Case Date:January 17, 1973
Court:United States Supreme Court

Page 512

409 U.S. 512 (1973)

93 S.Ct. 854, 35 L.Ed.2d 36




No. 71-6316

United States Supreme Court

Jan. 17, 1973

Argued December 7, 1972




Philadelphia County prisoners unable to make bail or being held on nonbailable offenses brought this class action, asserting the unconstitutionality of Pennsylvania Election Code provisions denying them the right to vote. When the Commonwealth (but not the municipal) officials who were named as defendants [93 S.Ct. 856] conceded the Code provisions' unconstitutionality, the District Judge (deeming the Commonwealth officials the principal defendants) ruled the case nonjusticiable as not involving an Art. III case or controversy, and dismissed the complaint. The Court of Appeals, though differing as to justiciability, affirmed on the ground that petitioners' constitutional claims were wholly insubstantial under McDonald v. Board of Election Comm'rs, 394 U.S. 802, and ruled that a three-judge district court was therefore not required under 28 U.S.C. § 2281.


1. The Commonwealth officials' concession did not foreclose the existence of an Art. III case or controversy, since the municipal officials continue to assert the right to enforce the challenged Code provisions. Pp. 516-517.

2. McDonald, supra, unlike the situation alleged here, did not deal with an absolute prohibition against voting by the prisoners there involved, and that decision does not "foreclose the subject" of petitioners' challenge to the Pennsylvania statutory scheme. The case may, if appropriate, therefore be heard by a three-judge district court. Pp. 518-523.

452 F.2d 39, reversed and remanded.

BRENNAN, J., delivered the opinion for a unanimous Court.

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BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question is whether 28 U.S.C. § 22811 required the convening of a three-judge court in the District Court for the Eastern District of Pennsylvania to hear this case. It is a class action brought by and on behalf of persons awaiting trial and confined in Philadelphia County prisons because either unable to afford bail or because charged with nonbailable offenses. The complaint alleges that provisions of the Pennsylvania Election Code, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, absolutely deny petitioners' class the right to vote in

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that they neither permit members of the class to leave prison to register and vote nor provide facilities for the purpose at the prisons, and in that they expressly prohibit persons "confined in penal institutions" from voting by absentee ballot.2 The complaint names as defendants two Commonwealth officials, the Attorney General and Secretary [93 S.Ct. 857] of State of Pennsylvania, and certain municipal officials of the County and City of Philadelphia: the City Commissioners of Philadelphia who constitute the Board of Elections and Registration Commission of the City and County of Philadelphia, the Voting Registration Supervisor for the City and County, and the Superintendent of Prisons for the County.

On oral argument before a single judge on petitioners' motion for a temporary restraining order, the Commonwealth officials appeared by a Deputy Attorney General, who conceded that the challenged provisions of the Election Code, as applied to petitioners' class, were unconstitutional under the Fourteenth Amendment. The municipal officials, on the other hand, vigorously defended the constitutionality of the provisions as so applied. The single judge deemed the contrary view of the municipal officials to be irrelevant, as he regarded the Commonwealth officials to be the "principal defendants." See

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n. 3, infra . He therefore ruled that the concession on behalf of the Commonwealth officials meant there was no case or controversy before the court as required by Art. III of the Constitution, and dismissed the complaint.3 On petitioners' appeal, the Court of Appeals for the Third Circuit affirmed. 452 F.2d 39 (1971). We do not, however, read the per curiam opinion of the Court of Appeals as resting the affirmance on agreement with the single judge that the concession of the Commonwealth officials meant there was no case or controversy before the court. Rather, we read the per curiam opinion as either implying disagreement with the single judge on that question or as at least assuming that a case or controversy existed, for the opinion states that, in the view of the Court of Appeals, petitioners' constitutional claims were wholly insubstantial under McDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969), in which circumstance,

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the Court of Appeals held, Bailey v. Patterson, 369 U.S. 31 (1962), was authority that 28 U.S.C. § 2281 did not require the assembly of a three-judge court, and that dismissal by the single judge was therefore proper, 452 F.2d at 40. A petition for rehearing en banc was denied, three judges dissenting. We granted certiorari, 408 U.S. 922 (1972). We reverse the judgment of the Court of Appeals and remand with direction to enter an appropriate order pursuant to 28 U.S.C. § 2281 for the convening of a three-judge court to hear this case.


The single judge clearly erred in holding that the concession of the Commonwealth officials foreclosed the existence of a case or controversy. All parties are in accord that Pennsylvania law did not oblige the municipal officials to defer to the concession of the Commonwealth officials, or otherwise give the Commonwealth officials a special [93 S.Ct. 858] status as "principal defendants."4 Indeed, the brief filed in this Court by the Commonwealth officials forthrightly argues that

[t]he District Court made an egregious error. The Attorney General and the Secretary of the Commonwealth are not the only defendants in this case. The City Commissioners...

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