McCrimmon v. Daley

• Decision Date: 28 October 1969
• Docket Number: No. 17397.,17397.
• Parties: Carolyn S. McCRIMMON et al., Plaintiffs-Appellants, v. Richard J. DALEY, Mayor and Local Liquor Control Commissioner of the City of Chicago, James Conlisk, Raymond Simon and William G. Clark, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

418 F.2d 366 (1969)

Carolyn S. McCRIMMON et al., Plaintiffs-Appellants, v. Richard J. DALEY, Mayor and Local Liquor Control Commissioner of the City of Chicago, James Conlisk, Raymond Simon and William G. Clark, Defendants-Appellees.

No. 17397.

United States Court of Appeals Seventh Circuit.

October 28, 1969.

Ellis E. Reid, Chicago, Ill., for plaintiffs-appellants.

Stanley A. Bass, Chicago, Ill., amicus curiae.

Raymond F. Simon, Marvin E. Aspen, Edmund Hatfield, William J. Scott, Atty. Gen. of the State of Illinois, Chicago, Ill., for William J. Scott; Francis T. Crowe, Herman R. Tavins, Asst. Atty. Gen., of counsel.

Before CASTLE, Chief Judge, HASTINGS, Senior Circuit Judge, and KILEY, Circuit Judge.

HASTINGS, Senior Circuit Judge.

Plaintiffs brought this class action pursuant to Rule 23(a), Federal Rules of Civil Procedure, Title 28 U.S.C.A.¹ They thereby sought a declaration that Chapter 147-15 of the Ordinances of the City of Chicago² and its enabling legislation, Ill.Rev.Stats., Ch. 43, Sec. 110-111,³ be held unconstitutional and further sought injunctive and other relief, all as hereinafter set out.

The Bar Maid Ordinance in question may be characterized generally as one prohibiting female persons, other than licensees or the mother, daughter, wife or sister of a licensee, from being employed as bartenders in a licensed retail liquor establishment in the City of Chicago.

Plaintiffs sue as a class comprised of several subclasses. One is a group of women who claim to be generally aggrieved by restrictions on their employment allegedly caused by the application to them of the ordinance and enabling legislation. A second subclass are women who were employed as bar maids and were arrested for violating the ordinance. The third subclass are men who were licensed owners and operators of retail liquor establishments in Chicago and were arrested for violating the ordinance by employing female bar maids. The fourth subclass is a group of owners and operators of taverns represented by their commercial trade association plaintiff Metropolitan Tavern Owners Association.

Defendants are Richard J. Daley, Mayor and Local Liquor Control Commissioner of the City of Chicago; James Conlisk, Superintendent of Police of Chicago; Raymond F. Simon, Corporation Counsel of Chicago; and William J. Scott (successor to William G. Clark), Attorney General of the State of Illinois.

We granted leave to Community Legal Counsel, of Chicago, to appear as an amicus and file a brief in support of plaintiffs' appeal, which it did through Stanley A. Bass, its attorney.

In addition to a declaratory judgment, plaintiffs sought to enjoin defendants or any of them from generally enforcing the instant ordinance and enabling statute and from interfering with plaintiffs in any manner arising out of the application of such ordinance and enabling statute to them. Plaintiffs further sought the convocation of a statutory three-judge district court to hear and determine this action pursuant to Title 28, U.S.C.A. §§ 2281, 2283.⁴

On October 14, 1968, defendant Attorney General of Illinois filed a motion to dismiss the action as to him on the grounds that (1) the complaint failed to state a claim against him; (2) he was not a proper party defendant; (3) there was no actual case or controversy between plaintiffs and him; and (4) the cause was not a proper class action. This was followed by a supporting memorandum of law on October 21, 1968.

Thereafter, on November 26, 1968, before any responsive pleadings were filed by any defendant, the trial court entered a memorandum opinion and order dismissing the Attorney General from the action on the ground that he was not a proper party defendant. At the same time the trial court, sua sponte, denied plaintiffs' request that a statutory three-judge district court be convened, and dismissed the entire action on the ground that the complaint failed to present a substantial federal question. Plaintiffs appealed.

I.

It has long been held that before a state officer, here the Attorney General, may properly be made a party defendant to a suit to enjoin the enforcement of an act alleged to be unconstitutional, he must have some connection with the enforcement of the act. Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Fitts v. McGhee, 172 U.S. 516, 530, 19 S.Ct. 269, 43 L.Ed. 535 (1899); Coon v. Tingle, D.C. N.D.Ga., 277 F.Supp. 304, 306 (1967).

Here the only state statute involved is Sections 110-111, supra, of the Illinois Liquor Control Act. A reading of this statute makes it plain that it is merely permissive enabling legislation. The Attorney General is not charged with its enforcement. Article 3 of the Act creates the Illinois Liquor Control Commission for that purpose. Furthermore, it does not appear there is any state statute prohibiting women from drawing, pouring or mixing alcoholic beverages, i. e., tending bar. The instant statute could not be violated by plaintiffs or subject them to arrest. The only act under enforcement is the city ordinance enacted pursuant to the enabling statute which vests local control and enforcement in the city. This the city has undertaken in its ordinance. We hold the trial court properly dismissed the Attorney General of Illinois as a party defendant and in that respect the action of the trial court is affirmed.

II.

Plaintiffs contend that the trial court erred in denying their request for a statutory three-judge district court. We disagree.

As we have shown above, the state statute concerned is merely permissive enabling legislation pursuant to which the critical city ordinance was enacted and enforced. The Attorney General of Illinois, the only officer of the state sought to be enjoined, has been properly dismissed as a party defendant. Thus there remains for consideration only a local city ordinance enforced by local officials. Clearly the requirements of 28 U.S.C.A. § 2281, supra, are not satisfied here.

Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967) appears dispositive of this proposition. There the Court reaffirmed its prior holdings:

"The Court has consistently construed the section as authorizing a three-judge court not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined. See, e. g., Ex parte Collins, 277 U.S. 565 48 S.Ct. 585, 72 L.Ed. 990; Ex parte Public National Bank, of New York, 278 U.S. 101 ,49 S. Ct. 43, 73 L.Ed. 202; Rorick v. Board of Commissioners, etc., 307 U.S. 208 59 S.Ct. 808, 83 L.Ed. 1242; City of Cleveland v. United States, 323 U.S. 329, 332 65 S.Ct. 280, 281, 89 L.Ed. 274; Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 227-228 84 S.Ct. 1226, 1231-1232, 12 L.Ed.2d 256. The term `statute\' in § 2281 does not encompass local ordinances or resolutions. The officer sought to be enjoined must be a state officer; a three-judge court need not be convened where the action seeks to enjoin a local officer (Ex parte Collins, supra; Rorick v. Board of Commissioners, supra) unless he is functioning pursuant to a statewide policy and performing a state function. Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 55 S.Ct. 678, 79 L.Ed. 1322. Nor does the section come into operation where an action is brought against state officers performing matters of purely local concern. Rorick v. Board of Commissioners, etc., supra. And, the requirement that the action seek to enjoin a state officer cannot be circumvented `by joining, as nominal parties defendant, state officers whose action is not the effective means of the enforcement or execution of the challenged statute.\' Wilentz v. Sovereign Camp, WOW, 306 U.S. 573, 579-580 59 S.Ct. 709, 713, 83 L.Ed. 994." Id. at 101-102, 87 S.Ct. at 1548.

In each of the two appeals in Moody, the Court found the state statute involved to be solely concerned with local matters and that the action was brought to enjoin local officers acting solely with reference to local matters, not against "state officers" within the meaning of § 2281. The Court held it improper to convene a statutory three-judge district court under these circumstances. Id. at 102-104, 87 S.Ct. 1544.

In the instant appeal, therefore, we hold that the trial court did not err in so ruling and in that respect its action is affirmed.

III.

Finally, we consider the order of the trial court dismissing the action, sua sponte, holding "that the ordinance and statute in question are not susceptible to the constitutional attacks leveled against them." In this respect we have concluded the district court erred.

In its dismissal, the trial court relied upon Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948), which upheld the validity of a Michigan bar maid statute similar in most respects to the instant Chicago ordinance. In turn, the Illinois Supreme Court, relying on Goesaert, upheld the validity of the subject ordinance in Henson v. City of Chicago, 415 Ill. 564, 114 N.E.2d 778 (1953). Also, cited by the trial court for the proposition "that Goesaert is still good law," was our opinion in Miskunas v. Union Carbide Corporation, 7 Cir., 399 F.2d 847, at 849-850.

Although we agree that Goesaert continues as a ruling precedent unless and until the Supreme Court determines its rationale to be no longer compelling, it may not necessarily be dispositive of constitutional issue before us. Since the parties were foreclosed from closing the issues properly by the sua sponte dismissal of the action below, we agree with plaintiffs and the amicus that such an opportunity should be afforded.

Both the Michigan statute upheld in Goesaert and the Chicago ordinance now before us except certain women from the general prohibition against women tending bar. However, the Chicago ordinance contains one exception not present in the Michigan statute. The Michigan exception as quoted in Goesaert covers "the wife or...