Crown Kosher Super Market of Mass., Inc. v. Gallagher, Civ. A. No. 58-471-M.
| Decision Date | 12 November 1959 |
| Docket Number | Civ. A. No. 58-471-M. |
| Citation | 178 F. Supp. 336 |
| Parties | CROWN KOSHER SUPER MARKET OF MASSACHUSETTS, INC. v. Raymond P. GALLAGHER, Chief of Police. |
| Court | U.S. District Court — District of Massachusetts |
For majority opinion, see 176 F.Supp. 466.
In this Three-Judge Court case the Commonwealth of Massachusetts moved for rehearing after the decision of the majority of the court had been handed down. The same majority in a "per curiam" decision have denied the motion without a hearing. As I indicated when the motion was denied, I did not agree with the denial. Herein, I express my reasons briefly for that disagreement.
In my dissenting opinion I stated that "the interests of justice would best be served by reopening the case in this court for the purpose of taking testimony to establish the truth". 176 F.Supp. 478 A re-examination and re-appraisal of the case as it was presented to the court has served only to strengthen my conviction that this case should not go to the Supreme Court in its present posture. The basic issues involved are of such importance that it would be extremely unfortunate, to say the least, to have the High Court presented with a record that is incomplete, inconclusive and confusing. A rehearing in my judgment would have resulted in the introduction of sufficient evidence to have clarified the factual situation.
In the memorandum of the majority of the court filed after the motion for rehearing was denied, it is stated that the result in this case might well have been different had the case been tried in another way. I would be less than candid if I did not make the observation that insofar as the presentation of evidence on behalf of the defendant was concerned, the case was not tried at all. One need only consult the record in the case and the docket entries on file to appreciate that this is so. The late Attorney General of the Commonwealth apparently contented himself with filing an appearance in its behalf. An Assistant Attorney General was assigned to the case but his activity was confined to the arguing of a motion to dismiss the complaint and to a cross-examination of the one witness who testified on behalf of the corporate plaintiff. In making that observation I make no reflection upon the able Assistant Attorney General who appeared in the court proceedings. Whatever the reasons may have been for the failure of the Commonwealth to investigate the allegations of the complaint, to present evidence on behalf...
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