Crossen v. Breckenridge

• Citation: 446 F.2d 833
• Decision Date: 23 June 1971
• Docket Number: No. 20852.,20852.
• Parties: Phillip CROSSEN, Fran Pozzuto, Peter Scott, Pat Craddock and Lexington Women's Liberation Group, Plaintiffs-Appellants, v. John BRECKENRIDGE, Attorney-General of the Commonwealth of Kentucky, and George Barker, Commonwealth Attorney for the 22nd Judicial District of Kentucky, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

446 F.2d 833 (1971)

Phillip CROSSEN, Fran Pozzuto, Peter Scott, Pat Craddock and Lexington Women's Liberation Group, Plaintiffs-Appellants, v. John BRECKENRIDGE, Attorney-General of the Commonwealth of Kentucky, and George Barker, Commonwealth Attorney for the 22nd Judicial District of Kentucky, Defendants-Appellees.

No. 20852.

United States Court of Appeals, Sixth Circuit.

June 23, 1971.

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Robert Allen Sedler, Lexington, Ky., (William H. Allison, Jr., Lexington, Ky., on the brief), for appellants.

Michael R. Moloney, Asst. Commonwealth Atty., 22nd Judicial District, Lexington, Ky., for George E. Barker.

M. Curran Clem, Asst. Atty. Gen., Frankfort, Ky., for John Breckenridge.

Before EDWARDS, MILLER and KENT, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This appeal arises from the dismissal of a complaint challenging the constitutionality of the Kentucky anti-abortion statute, Ky.Rev.Stat. 436.020.¹ The appellants are Phillip Crossen, a physician specializing in obstetrics and gynecology, a pregnant woman, Pat Craddock, who allegedly has been denied an abortion, Fran Pozzuto, a non-pregnant woman, Peter Scott, a minister, and a women's rights organization. Appellees are the Attorney General of Kentucky and the District Attorney in Fayette County, Kentucky. The action seeks a declaratory judgment pursuant to 28 U.S.C. Secs. 2201 and 2202 that the statute is unconstitutional, and a permanent injunction pursuant to 42 U.S.C. Sec. 1983 enjoining the appellees from enforcing, threatening to enforce, or otherwise applying the challenged statute. Federal jurisdiction is invoked under 28 U.S.C. Secs. 1331 and 1343.² No formal charge of a statutory violation has been made against any of the plaintiffs. Because injunctive relief based on the alleged unconstitutionality of a state statute is demanded, the complaint also seeks to have a three-judge district court convened pursuant to 28 U.S.C. Secs. 2281 and 2284. Each individual appellant seeks to represent a class of similarly situated persons. The state is alleged to be in conflict with rights guaranteed by the first, fourth, fifth, eighth, ninth, and fourteenth amendments to the Constitution. The district court dismissed the action on motion of appellees for failure to state a claim, holding in a bench opinion that there was no actual case or controversy to invoke the court's jurisdiction.

I.

The district court's opinion concludes that it was without jurisdiction to act in the case. Apparently this conclusion was reached because the trial judge was of the view that the complaint sought only an advisory opinion and therefore did not present a "case or controversy," and that the plaintiffs lacked standing. Of course, the statutes requiring a three-judge court in certain cases, 28 U.S.C. Secs. 2281 and 2284, require the existence of federal subject-matter jurisdiction of the district court. See Lion Manufacturing Corp. v. Kennedy, 117 U.S.App.D.C. 367, 330 F.2d 833 (1964). In order to determine whether to request a three-judge court, the district judge must initially find that plaintiffs with standing have presented a "case or controversy." See American Commuters Association v. Levitt, 279 F. Supp. 40 (S.D.N.Y.1967), aff'd 405 F.2d 1148 (2d Cir. 1969). As was stated by the Court of Appeals for the District of Columbia, "federal courts, at any rate, whose powers fall wholly within the ambit of Article III of the Constitution, lack jurisdiction to respond to * * * an application for an advisory opinion. Whether the relief sought is legal or equitable, injunctive or declaratory, it must be within the framework of a true case or controversy capable of meaningful adjudication." Lion Manufacturing Corp. v. Kennedy, supra, 330 F.2d at 838. If the single judge to whom a request for a three-judge court is addressed properly determines that there is no jurisdiction in his court he may dismiss the complaint without requesting a three-judge court. Id. at 840-841.

The parties on appeal have viewed the decision of the district court substantially as we have stated it, for both sides have briefed as the only issue for decision the question whether the complaint presented a case or controversy within the constitutional jurisdiction of the federal courts. For the reasons set out below, we hold that the appellants Crossen and Craddock have standing, and have presented a case or controversy to the district court. Whether this is also true as to appellant Scott must be determined on remand as indicated below. Although the district court purported to rule, as we hold erroneously, only on the lack of a federally cognizable claim, we shall not so limit our decision. Rather, in our view, the allegations of the complaint giving rise to Article III jurisdiction, are also sufficient to invoke the jurisdiction of a three-judge court. Consequently, it is proper to treat the present appeal as also arising from a denial of a motion to convene the statutory court.³See Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865 (1967); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962).

II.

The district judge held that the complaint sought an advisory opinion and was thus not cognizable in federal court. In particular, he held that appellant Crossen was not in position to ask for a declaratory judgment before any violation of the statute was consummated.⁴ This view of "case or controversy" we think, is too narrow. The case or controversy requirement places two limitations on Article III courts. The first is that courts may not encroach on areas reserved to the other branches of government, and the second is that courts may decide only those cases "presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). An actual controversy is supplied by plaintiffs with a "personal stake and interest," Barlow v. Collins, 397 U.S. 159, 164, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), arrayed against persons with adverse legal interests in a sufficiently immediate adversary context to warrant declaratory relief. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed. 2d 113 (1969). Neither violation of the statute nor the pendency of a prosecution is a sine qua non for a declaratory judgment action challenging the constitutionality of a state criminal statute. See Epperson v. Arkansas, 393 U.S. 97, 101-102, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), in which the Supreme Court decided a constitutional challenge to a state statute prohibiting the teaching of evolution in public schools in the absence of a record of any prosecutions under the statute. (But cf. Doe v. Randall, 314 F.Supp. 32 (D.Minn.1970) (three-judge court)). Nor is this a case in which there is an apparent state policy of non-enforcement of a criminal statute making its "mere existence * * * insufficient grounds to support a federal court's adjudication of its constitutionality * * *." Poe v. Ullman, 367 U.S. 497, 507, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961).⁵ Nor do we think that the Constitution requires litigants to subject themselves to the possible harm of a criminal prosecution before seeking relief from an allegedly unconstitutional statute, see Pierce v. Society of Sisters, etc., 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), when actual interference with protected rights is alleged or shown. Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-156, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

In deciding whether there is a case or controversy frequently the issue of standing must be decided. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L. Ed.2d 663 (1962). Standing "concerns, apart from the `case' or `controversy' test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). As was also said by the Supreme Court: "* * * when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." Flast v. Cohen, supra, 392 U.S. at 99-100, 88 S.Ct. at 1952. In deciding which appellants in the present action are properly before the district court, the Flast case teaches that we are to look to the substantive issues "to determine whether there is a logical nexus between the status asserted by an appellant and the claim sought to be adjudicated." Flast v. Cohen, supra, 392 U.S. at 102, 88 S.Ct. at 1953.

III.

The substance of the complaint of the two female appellants, pregnant and non-pregnant, is that the statute deprives them of a fundamental right of marital and bodily privacy under the ninth amendment in deciding whether to carry a pregnancy to term. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The complaint raises a variety of other constitutional issues, including alleged violations of the first, eighth, and fourteenth amendments, but the right to privacy as expressed in Griswold is the basic and central theme of the challenge of the women. At the commencement of the action appellant Craddock was pregnant and had allegedly been denied an abortion because of the existence and threatened enforcement of the statute in question. On these facts we find that appellant Craddock has standing based on a sufficient nexus between her status and the constitutional claim of the right to decide privately whether to bear her child. Flast v. Cohen, supra, 392 U.S. at 102, 88...