Benson v. Beens, 72-1076.

• Decision Date: 13 March 1972
• Docket Number: No. 72-1076.,72-1076.
• Citation: 456 F.2d 244
• Parties: Senator C. J. BENSON et al., Appellants, v. Richard A. BEENS et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

456 F.2d 244 (1972)

Senator C. J. BENSON et al., Appellants, v. Richard A. BEENS et al., Appellees.

No. 72-1076.

United States Court of Appeals, Eighth Circuit.

March 13, 1972.

Joseph A. Mann, Lawrence J. Hayes, Garrett E. Mulrooney, James A. Gallagher, Mann, Hazel, Green, Hayes, Simon & Aretz, St. Paul, Minn., for appellants.

Alan W. Weinblatt, Berde, Leonard & Weinblatt, St. Paul, Minn., for appellees.

Before MATTHES, Chief Judge, and VAN OOSTERHOUT and GIBSON, Circuit Judges.

PER CURIAM.

This case is before us on the motion of the appellants Senator Benson, et al., filed February 11, 1972, for an expedited hearing upon their appeal from order of a duly constituted three-judge court denying their petition to intervene in a case in which said court had previously found certain Minnesota statutes dealing with legislative apportionment unconstitutional, and had granted injunctive and other relief. Resistance thereto has been filed by plaintiff-appellees.

Plaintiff-appellees on February 18, 1972, filed a motion to dismiss the appeal or affirm. At the invitation of this court the appellants and plaintiff-appellees have filed typewritten memorandums on the issue of this court's jurisdiction to hear this appeal.

The underlying facts bearing on the jurisdiction issue may be summarized as follows: A duly constituted three-judge court heard an action brought by plaintiffs, individual citizen voters of Minnesota, challenging the constitutionality of the Minnesota legislative apportionment statutes. Such court on November 15, 1971, entered an order determining the apportionment statutes to be unconstitutional and enjoining further elections thereunder. After holding additional hearings, the three-judge court entered a final order and judgment reducing the membership of the House and Senate and making provision for the election of members of the legislature. Senator Benson, joined by five other state Senators and twelve State Representatives, on February 8, 1972, filed a post judgment motion for leave to intervene. The principal asserted reason for this untimely motion is that the proposed intervenors had relied upon the intervening State Senate to protect their interest and that doubt has now arisen whether the Senate will prosecute the appeal. The three-judge court, after holding a hearing on February 9, 1972, denied leave to intervene. The appeal to this court is taken from such order.

The State Senate, pursuant to Senate resolution, upon petition was granted leave to intervene in the case and participated therein. On January 25, 1972, the Senate appealed from the final judgment of January 25, 1972. The appeal was docketed on February 11, 1972.

We believe that the only issue properly before us at this time is whether we have jurisdiction to entertain the appeal. Thus our statement of facts has been limited to those bearing on jurisdiction.

The parties to this appeal in their briefs agree that the basic case was properly heard before the three-judge court and that the judgment declaring the Minnesota statutes unconstitutional and enjoining elections thereunder is subject to review only by the Supreme Court under ...