Holt Civic Club v. City of Tuscaloosa

• Citation: 525 F.2d 653
• Decision Date: 31 December 1975
• Docket Number: No. 75--3323,75--3323
• Parties: HOLT CIVIC CLUB, etc., et al., Plaintiffs-Appellants, v. CITY OF TUSCALOOSA, etc., et al., Defendants-Appellees. Summary Calendar. *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 653

525 F.2d 653

HOLT CIVIC CLUB, etc., et al., Plaintiffs-Appellants, v. CITY OF TUSCALOOSA, etc., et al., Defendants-Appellees.

No. 75--3323 Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Dec. 31, 1975.

Edward Still, William M. Dawson, Jr., Birmingham, Ala., for plaintiffs-appellants.

Wagner Finnell, City Atty., Glenn N. Baxter, Tuscaloosa, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.

AINSWORTH, Circuit Judge:

The Holt Civic Club, an unincorporated association, and individual members thereof who reside outside the corporate limits of Tuscaloosa, Alabama, but within the 3-mile contiguous zone surrounding the city known as its municipal police jurisdiction, brought suit challenging the constitutionality of the Alabama statutes creating such 3-mile police jurisdictions around Alabama municipalities with populations greater than 6,000 and 1.5-mile police jurisdictions around incorporated municipalities with smaller populations. Ala.Code, Tit. 37, §§ 9, 585 and 733. ¹ Plaintiffs seek to represent a class of all similarly situated Alabama residents who live in such contiguous zones surrounding Alabama municipalities. Defendants are the City of Tuscaloosa, the three members of the governing body of the city (the members of the Commission Board), and the judge of the Recorder's Court of the city. Plaintiffs also seek a determination that these defendants are representative of a class consisting of all municipal executives, all municipal legislative bodies, and all municipal judicial officers or judges in the State of Alabama. The certification of these classes was not ruled upon. The court rejected plaintiffs' request made pursuant to 28 U.S.C. §§ 2281--84 that a three-judge court be convened and dismissed the complaint.

Section 2281 is not applicable unless (1) a state statute with state-wide applicability is challenged, (2) an 'officer of such state' is sought to be restrained; (3) injunctive relief is sought, and (4) there is a substantial question as to the validity of the statute under the Federal Constitution. In this case, plaintiffs clearly seek injunctive relief challenging the enforceability of a statute which does have state-wide applicability. Despite the fact that local officers of the City of Tuscaloosa named in the complaint are 'chosen in a political subdivision and act( ) within that limited territory,' they are charged with applying statutes embodying 'a policy of state-wide concern.' Spielman Motor Sales Co., Inc. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322 (1935). According to the allegations in plaintiffs' suit, the statutes in question create a pattern of disfranchisement with regard to local matters in the police jurisdictions surrounding Alabama municipalities. As a practical matter, local officials are the only public officers in the state who can exercise the state-created extraterritorial municipal authority which impinges on these unrepresented areas. Accordingly, we conclude that defendants are officers within the meaning of section 2281 for three-judge court purposes. See Sailors v. Board of Education of the County of Kent, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); Moody v. Flowers, 387 U.S. 97, 101--102, 87 S.Ct. 1544, 1548, 18 L.Ed.2d 643 (1967) (dictum) ('a three-judge court need not be convened where the action seeks to enjoin a local officer . . . unless he is functioning pursuant to a statewide policy and performing a state function'); Gilmore v. James, N.D.Tex., 1967, 274 F.Supp. 75 (three- judge court), aff'd, 389 U.S. 572, 88 S.Ct. 695, 19 L.Ed.2d 783 (1968). See also Board of Regents of the University of Texas System v. New Left Education Project, 404 U.S. 541, 544 n.2, 92 S.Ct. 652, 654 n.2, 30 L.Ed.2d 697 (1972) (dictum).

Finally, in light of Supreme Court standards for determining the substantiality of constitutional questions for purposes of section 2281, we cannot agree with the district court that the plaintiffs' claim in this case is 'wholly insubstantial,' Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973), 'essentially fictitious,' Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 332 (1962), or 'obviously frivolous,' Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910).

Under the circumstances, the case is remanded to the district judge for the convening of a three-judge court.

Reversed and remanded.

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