431 F.2d 855 (5th Cir. 1970), 28274, Wilson v. Gooding

Docket Nº28274.
Citation431 F.2d 855
Party NameJohnny C. WILSON, Petitioner-Appellee, v. Millard GOODING, Warden, Richmond County Public Works Camp, Richmond County, Georgia, Respondent-Appellant.
Case DateAugust 19, 1970
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 855

431 F.2d 855 (5th Cir. 1970)

Johnny C. WILSON, Petitioner-Appellee,

v.

Millard GOODING, Warden, Richmond County Public Works Camp, Richmond County, Georgia, Respondent-Appellant.

No. 28274.

United States Court of Appeals, Fifth Circuit.

Aug. 19, 1970

Page 856

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., Franklin H. Pierce, Augusta, Ga., for appellant.

Howard Moore, Jr., Peter Rindskopf, Charles Morgan, Jr., Atlanta, Ga., Reber F. Boult, Jr., James K. Baker, Birmingham, Ala., Melvin L. Wulf, Eleanor Holmes Norton, New York City, for appellee.

Before SIMPSON, MORGAN, and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Petitioner-Appellee Wilson was indicted and convicted in Superior Court of Fulton County, Georgia, on two counts of assault and battery, and two counts of using opprobrious and abusive language, 1 the latter in violation of Georgia Code § 26-6303. 2 Appellee filed a petition for a writ of habeas corpus in the federal district court, pursuant to 28 U.S.C. § 2254. Among other claims, he alleged that § 26-6303 was unconstitutional on its face under the First and Fourteenth Amendments because of its vagueness and overbreadth. The district court, in an order dated March 4, 1969, dismissed all of appellee's habeas corpus claims with the exception of the question involving § 26-6303, it appearing that state remedies had not been exhausted. The question of the facial constitutionality of § 26-6303, however, had previously been before the Georgia Supreme Court, 3 obviating the need to exhaust state remedies on that matter. 4

In a subsequent order entered on July 8, 1969, the district court held § 26-6303 unconstitutional on its face and ordered the release of appellee from that portion of his confinement attributable to his conviction under the statute. Wilson v. Gooding, 303 F.Supp. 952 (N.D.Ga.1969). Appellants, Millard Gooding and the State of Georgia, in seeking reversal of this judgment and order, raise the following two issues:

I. Did the district court err by failing to request a three-judge court pursuant to 28 U.S.C. § 2281 when an application

Page 857

for a writ of habeas corpus raises a substantial question of the constitutionality of a state statute?

II. Did the district court err in holding § 26-6303 unconstitutionally vague and overbroad on its face and as interpreted by the Georgia courts?

I.

The first issue involves a possible conflict between habeas corpus and three-judge court jurisdiction under § 2281. 5 It is well recognized that there are four essential requirements for the application of § 2281: '(1) a state statute must be challenged; (2) a state officer or local officer performing a state function must be a party defendant; (3) injunctive relief must be sought; (4) it must be claimed that the statute is contrary to the Constitution.' Gilhool v. Chairman & Com'rs, Philadelphia Co. Bd. of Elections, 306 F.Supp. 1202, 1205 n.2 (E.D.Pa. 1969), aff'd, 397 U.S. 147, 90 S.Ct. 996, 25 L.Ed.2d 182 (1970); C. Wright, Federal Courts § 50, at 189 (2d ed. 1970). See also Hall v. Garson, 430 F.2d 430, 442, (5th Cir. 1970). Although there is no problem in the case sub judice with requirements (1), (2) and (4), there was no prayer for injunctive relief. Appellants, however, argue that in substance, if not in form, all four requisites have been met because the effect of holding § 26-6303 unconstitutional was to enjoin a state officer from enforcing a state statute.

In sum, appellants are calling for a liberal construction of § 2281. The Supreme Court, however, has repeatedly warned that the three-judge court legislation is not 'a measure of broad social policy to be construed with great liberality,' but rather 'an enactment technical in the strict sense of the word and to be applied as such.' Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941). See Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); Hall v. Garson, supra. The Court has also taken the position that under the analogous provisions of 28 U.S.C. § 2282, dealing with federal statutes, when plaintiffs merely attack the validity of legislation without also '* * * affirmatively (seeking) to interdict the operation of a statutory scheme,' a single district judge alone must hear the case. Flemming v. Nestor, 363 U.S. 603, 607, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). See Mitchell v. Donovan, supra; Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153-155, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). 6

The specific question raised by appellants is whether a single district court judge has jurisdiction to pass upon the constitutionality of a state statute in a habeas corpus proceeding in view of the requirement for a three-judge court under § 2281. To our knowledge, there has been no discussion of this particular issue beyond the district court level. The majority of lower courts, however, have followed the view that § 2281 has no relation to habeas corpus proceedings and thus that a single judge is sufficient. United States ex rel. Robinson v. York, 281 F.Supp. 8, 12 (D.C.Conn.1968); McCarroll v. Faust, 278...

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  • 373 F.Supp. 956 (S.D.Fla. 1974), 73-1489, Hobbs v. Tom Norton Motor Co.
    • United States
    • Federal Cases United States District Courts 11th Circuit Southern District of Florida
    • March 26, 1974
    ...(3) injunctive relief must be sought; (4) it must be claimed that the statute is contrary to the Constitution. Wilson v. Gooding, 431 F.2d 855, 857 (5th Cir. While the above four requirements appear to be satisfied upon a cursory review of plaintiff's complaint, careful examination of the a......
  • 386 F.Supp. 1042 (E.D.N.Y. 1974), Government of United States ex rel. Shaban v. Essen
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • December 26, 1974
    ...to habeas corpus proceedings' and that a single judge is sufficient to make such a determination in such a proceeding. Wilson v. Gooding, 431 F.2d 855 (5th Cir. 1970); United States ex rel. Murray v. Owens, 341 F.Supp. 722 (S.D.N.Y.1972); United States v. York, 281 F.Supp. 8, 12 (D.C.Conn.1......
  • 523 F.Supp. 703 (E.D.Tex. 1981), Civ. A. 5281, United States v. State of Texas
    • United States
    • Federal Cases United States District Courts 5th Circuit Eastern District of Texas
    • July 30, 1981
    ...480, 483, 85 L.Ed. 800 (1941); Triple A Realty, Inc. v. Florida Real Estate Comm., 468 F.2d 245, 247 (5th Cir. 1972); Wilson v. Gooding, 431 F.2d 855, 858 (5th Cir. 1970), affirmed on other grounds, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1971). As the Court of Appeals observed in Wils......
  • 414 F.Supp. 508 (E.D.N.Y. 1976), 76 C 355, United States ex rel. Mercogliano v. County Court of Nassau County
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • June 8, 1976
    ...to habeas corpus proceedings, at least if no attempt is made to initiate the proceedings on behalf of class. See e.g. Wilson v. Gooding, 431 F.2d 855 (5th Cir. 1970), aff'd, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Scott v. District Attorney, Jefferson Parish, State of Louisiana,......
  • Request a trial to view additional results
16 cases
  • 373 F.Supp. 956 (S.D.Fla. 1974), 73-1489, Hobbs v. Tom Norton Motor Co.
    • United States
    • Federal Cases United States District Courts 11th Circuit Southern District of Florida
    • March 26, 1974
    ...(3) injunctive relief must be sought; (4) it must be claimed that the statute is contrary to the Constitution. Wilson v. Gooding, 431 F.2d 855, 857 (5th Cir. While the above four requirements appear to be satisfied upon a cursory review of plaintiff's complaint, careful examination of the a......
  • 386 F.Supp. 1042 (E.D.N.Y. 1974), Government of United States ex rel. Shaban v. Essen
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • December 26, 1974
    ...to habeas corpus proceedings' and that a single judge is sufficient to make such a determination in such a proceeding. Wilson v. Gooding, 431 F.2d 855 (5th Cir. 1970); United States ex rel. Murray v. Owens, 341 F.Supp. 722 (S.D.N.Y.1972); United States v. York, 281 F.Supp. 8, 12 (D.C.Conn.1......
  • 523 F.Supp. 703 (E.D.Tex. 1981), Civ. A. 5281, United States v. State of Texas
    • United States
    • Federal Cases United States District Courts 5th Circuit Eastern District of Texas
    • July 30, 1981
    ...480, 483, 85 L.Ed. 800 (1941); Triple A Realty, Inc. v. Florida Real Estate Comm., 468 F.2d 245, 247 (5th Cir. 1972); Wilson v. Gooding, 431 F.2d 855, 858 (5th Cir. 1970), affirmed on other grounds, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1971). As the Court of Appeals observed in Wils......
  • 414 F.Supp. 508 (E.D.N.Y. 1976), 76 C 355, United States ex rel. Mercogliano v. County Court of Nassau County
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • June 8, 1976
    ...to habeas corpus proceedings, at least if no attempt is made to initiate the proceedings on behalf of class. See e.g. Wilson v. Gooding, 431 F.2d 855 (5th Cir. 1970), aff'd, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Scott v. District Attorney, Jefferson Parish, State of Louisiana,......
  • Request a trial to view additional results