Driskell v. Edwards

• Decision Date: 05 September 1975
• Docket Number: No. 74-4020,74-4020
• Citation: 518 F.2d 890
• Parties: Reverend Herman L. DRISKELL et al., Plaintiffs-Appellants, v. Honorable Edwin W. EDWARDS, Governor, State of Louisiana, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 890

518 F.2d 890

Reverend Herman L. DRISKELL et al., Plaintiffs-Appellants, v. Honorable Edwin W. EDWARDS, Governor, State of Louisiana etc., et al., Defendants-Appellees.

No. 74-4020.

United States Court of Appeals Fifth Circuit.

Sept. 5, 1975.

Jerry L. Finley, Monroe, La., for plaintiffs-appellants.

Robert G. Pugh, Sp. Asst. Atty. Gen., Shreveport, La., Kenneth W. DeJean, Asst. Atty. Gen., State of Louisiana, Baton Rouge, La., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, Chief Judge, and GODBOLD and CLARK, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This much-traveled case comes to us as an appeal from the determination by a single district judge that the constitutional attack before him did not need to be heard by a three-Judge Court because the question presented was insubstantial and the case inappropriate for injunctive relief. We reverse.

Act 2 of the 1972 Louisiana Legislature called a convention to convene January 5, 1973 and frame a new state constitution. One delegate was to be elected from each legislative district and a number of others were to be appointed by the Governor some to represent special interest groups and others from the public at large at his discretion. ¹ One hundred and five delegates were elected and the remaining twenty-seven were appointed. ²

When the convention closed on January 19, 1974 its business was complete. A proposed constitution was ready to be laid before the people for popular ratification in a state-wide election to be held on April 20, 1974.

On April 5, some two weeks before the election, the appellants filed this action. They sought a declaratory judgment, 28 U.S.C.A. § 2201, that Act 2 providing for the convention was void because the method of delegate selection did not comply with the "one person, one vote" doctrine and to enjoin the April 20 election. In addition, they asserted that under 28 U.S.C.A. § 2281 ³ this claim must be heard by a three-Judge Court.

In a memorandum opinion and order dated April 10 the District Judge (i) held that no three-Judge Court was necessary because the federal constitutional question presented was insubstantial, (ii) injunctive relief was inappropriate because of the potential irreparable injury to the State represented by a wasted expenditure of several million dollars and (iii) granted the defendant state officials' motion for summary judgment.

Having lost the first round, appellants applied to Justice Powell, the Circuit Justice for the Fifth Circuit, for an injunction against the impending election. This application was denied April 18. On April 23, three days after the election, ⁴ a similar application by telegram was made to Justice Douglas. Once again injunctive relief was denied.

Appellants next petitioned the Supreme Court for a writ of certiorari. In response, the Court vacated the judgment of the District Court and ordered that Court to enter a new decree from which an appeal could be taken to the Court of Appeals the time to do so having elapsed. This action cannot be construed to mean more than that the Court of Appeals was the proper court to entertain the appeal. See Wilson v. City of Port Lavaca, 1968, 391 U.S. 352, 88 S.Ct. 1502, 20 L.Ed.2d 636, cited by the Court in its order. And we so treat it. In accordance with the Supreme Court's direction the District Judge entered a new decree from which this appeal is taken.

Appellants make only one assertion that must be answered by us on this appeal. And that is whether the District Judge was correct in his determination that no three-Judge Court was necessary because the question presented was insubstantial. Although in doing so we fear we fly in the face of common sense, important practical considerations and the all but crystal clear state of the law itself, we must reluctantly conclude that the District Judge was wrong.

Our difficulty is that the Supreme Court has defined what constitutes an insubstantial federal question for purposes of deciding whether a three-Judge Court is necessary not once but several times in the strongest possible terms. The height of the hurdle that must be jumped can best be gauged by the following language from Goosby v. Osser, 1973, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36, 42:

"Constitutional insubstantiality for this purpose has been equated with such concepts as 'essentially fictitious,' Bailey v. Patteson, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962), 'wholly insubstantial,' ibid, 'obviously frivolous,' Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910), 'obviously without merit,' Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4-5, 78 L.Ed. 152 (1933). The limiting words 'wholly' and 'obviously' have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous, previous decisions which merely render claims of doubtful or questionable merit do not render these insubstantial for the purposes of 28 U.S.C. Sec. 2281. A claim is insubstantial only if 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.' Ex parte Poresky, 290 U.S. at 32, 54 S.Ct. 4."

If left to our own devices on a penetrating analysis of the factors involved we might well conclude that the contention that a convention whose only duty is to draw up a constitution and propose it for ratification by the people must be chosen in accordance with "one person one vote" principles is unsound, indeed very unsound. But we could not in good faith say that such unsoundness "clearly results from the previous decisions of this (the Supreme) Court." ⁵

Baker v. Carr, 1962, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, and its progeny do not themselves give us the answer. We know that

(A)s a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election * * * .

Hadley v. Junior College District, 1970, 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45, 50-51. The Court has held a number of bodies to be ones that perform governmental functions Congress, Wesberry v. Sanders, 1964, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, state legislatures, Reynolds v. Sims, 1964, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, county commissioners court, Avery v. Midland County, 1968, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45, and public junior college board of trustees, Hadley v. Junior College District, supra. Unfortunately none of these cases ⁶ define governmental functions in such a way as to so wholly preclude the applicability of "one person, one vote" principles to a constitutional convention as to make a contention to the contrary "obviously without merit." Ex parte Poresky, supra. Equally important, no one could challenge that a statutorily created constitution commission is engaged in what has to be a "governmental function" of the highest order. But that does not really answer the question whether from an operational sense is the function performed by such an assembly of nature properly calling for formalized participation by all segments through a fairly apportioned body.

We can find only one pronouncement from within the Supreme Court squarely on point. In Fortson v. Toombs, 1965, 379 U.S. 621, 626, 85 S.Ct. 598, 601, 13 L.Ed.2d 527, 531, Justice Harlan, joined by Justice Stewart in a special concurring-dissenting opinion, stated

"As to the provisions forbidding submission to the electorate of a legislatively proposed new state constitution, I can find nothing in the Fourteenth Amendment, elsewhere in the Constitution, or in any decision of this Court, which requires a State to initiate complete or partial constitutional change only by some method in which every voice in the voting population is given an opportunity to express itself. Can there be the slightest constitutional doubt that a State may lodge the power to initiate constitutional changes in any select body it pleases, such as a committee of the legislature, a group of constitutional lawyers, or even a 'malapportioned' legislature . . . ."

But this is no holding.

Still, it is our view that the search need not stop with the United States Reports, Supreme Court Reporter or Lawyer's Edition First or Second. In spite of its almost airtight language the Supreme Court surely expects to be read in some way more intelligent than just total literalism. An especially fertile imagination is not necessary to conceive of legal questions whose insubstantiality while not clearly resulting from previous Supreme Court decisions must be obvious to all. Because we believe that the question before us on this appeal comes so close to being one of patently evident insubstantiality we, with the assistance of counsel, have searched high and low for cases on point not for their precedential value but for guidance. Our search has not been particularly fruitful.

On the federal side, in one three-Judge Court opinion we have found some suggestion, although it is far from clear, that a state constitution must be proposed to the people by a body chosen in line with "one person, one vote" principles. ⁷ Butterworth v. Dempsey, D.Conn.1964, 237 F.Supp. 302, 308.

State Court decisions muddy the waters even further. There are six state Supreme Court opinions that speak to the problem.

In three of them an attack on a constitutional convention similar to the one before us today was rejected. West v. Carr, 1963, 212...