Goosby v. Osser

Decision Date17 January 1973
Docket NumberNo. 71-6316,71-6316
Citation93 S.Ct. 854,35 L.Ed.2d 36,409 U.S. 512
PartiesAndrew C. GOOSBY et al., Petitioners, v. Maurice OSSER et al
CourtU.S. Supreme Court

Philadelphia County prisoners unable to make bail or being held on nonbailable offenses brought this class action, asserting the unconstitutionality of Pennsylvania Election Code provisions denying them the right to vote. When the Commonwealth (but not the municipal) officials who were named as defendants conceded the Code provisions' unconstitutionality, the District Judge (deeming the Commonwealth officials the principal defendants) ruled the case nonjusticiable as not involving an Art. III case or controversy, and dismissed the complaint. The Court of Appeals, though differing as to justiciability, affirmed on the ground that petitioners' constitutional claims were wholly insubstantial under McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 31, 802, 89 S.Ct. 1404, 22 L.Ed.2d 739, and ruled that a three-judge district court was therefore not required under 28 U.S.C. § 2281. Held:

1. The Commonwealth officials' concession did not foreclose the existence of an Art. III case or controversy since the municipal officials continue to assert the right to enforce the challenged Code provisions. Pp. 516—517.

2. McDonald, supra, unlike the situation alleged here, did not deal with an absolute prohibition against voting by the prisoners there involved, and that decision does not 'foreclose the subject' of petitioners' challenge to the Pennsylvania statutory scheme. The case may, if appropriate, therefore be heard by a three-judge district court. Pp. 518—523.

3. Cir., 452 F.2d 39, reversed and remanded.

Ann S. Torregrossa, Philadelphia, Pa., for petitioners, pro hac vice, by special leave of Court.

Peter W. Brown, Philadelphia, Pa., for respondents Commonwealth of Pennsylvania and others.

John Mattioni, Philadelphia, Pa., for municipal respondents.

Mr. Justice BRENNAN delivered the opinion of the Court.

The question is whether 28 U.S.C. § 22811 required the convening of a three-judge court in the District Court for the Eastern District of Pennsylvania to hear this case. It is a class action brought by and on behalf of persons awaiting trial and confined in Philadelphia County prisons because either unable to afford bail or because charged with nonbailable offenses. The complaint alleges that provisions of the Pennsylvania Election Code, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, absolutely deny petitioners' class the right to vote in that they neither permit members of the class to leave prison to register and vote, nor provide facilities for the purpose at the prisons, and in that they expressly prohibit persons 'confined in penal institutions' from voting by absentee ballot.2 The complaint names as defendants two Commonwealth officials, the Attorney General and Secretary of State of Pennsylvania, and certain municipal officials of the County and City of Philadelphia: the City Commissioners of Philadelphia who constitute the Board of Elections and Registration Commission of the City and County of Philadelphia, the Voting Registration Supervisor for the City and County, and the Superintendent of Prisons for the County.

On oral argument before a single judge on petitioners' motion for a temporary restraining order, the Commonwealth officials appeared by a Deputy Attorney General, who conceded that the challenged provisions of the Election Code, as applied to petitioners' class, were unconstitutional under the Fourteenth Amendment. The municipal officials, on the other hand, vigorously defended the constitutionality of the provisions as so applied. The single judge deemed the contrary view of the municipal officials to be irrelevant, as he regarded the Commonwealth officials to be the 'principal defendants.' See n. 3, infra. He therefore ruled that the concession on behalf of the Commonwealth officials meant there was no case or controversy before the court as required by Art. III of the Constitution, and dismissed the complaint.3 On petitioners' appeal, the Court of Appeals for the Third Circuit affirmed. 452 F.2d 39 (1971). We do not, however, read the per curiam opinion of the Court of Appeals as resting the affirmance on agreement with the single judge that the concession of the Commonwealth officials meant there was no case or controversy before the court. Rather, we read the per curiam opinion as either implying disagreement with the single judge on that question, or as at least assuming that a case or controversy existed, for the opinion states that, in the view of the Court of Appeals, petitioners' constitutional claims were wholly insubstantial under McDonald v. Board of Election Comm'rs., 394 U.S. 802, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), in which circumstance the Court of Appeals held, Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), was authority that 28 U.S.C. § 2281 did not require the assembly of a three-judge court and that dismissal by the single judge was therefore proper, 452 F.2d, at 40. A petition for rehearing en banc was denied, three judges dissenting. We granted certiorari, 408 U.S. 922, 92 S.Ct. 2504, 33 L.Ed.2d 332 (1972). We reverse the judgment of the Court of Appeals and remand with direction to enter an appropriate order pursuant to 28 U.S.C. § 2281 for the convening of a three-judge court to hear this case.


The single judge clearly erred in holding that the concession of the Commonwealth officials foreclosed the existence of a case or controversy. All parties are in accord that Pennsylvania law did not oblige the municipal officials to defer to the concession of the Commonwealth officials, or otherwise give the Commonwealth officials a special status as 'principal defendants.'4 Indeed, the brief filed in this Court by the Commonwealth officials forthrightly argues that '(t)he District Court made an egregious error. The Attorney General and the Secretary of the Commonwalth are not the only defendants in this case. The City Commissioners of Philadelphia, the Voting Registration Supervisor, the Registration Commission, and the Superintendent of Prisons for Philadelphia County are also parties. These parties have contested vigorously the issues raised by petitioners both in the District Court and on appeal. They have provided adversity of interest, and will sharply define the issues, to the extent they are not already clear.' Brief for Respondents Commonwealth of Pennsylvania et al. 4—5.5

Thus, there is satisfied the requisite of Art. III that '(t)he constitutional question . . . be presented in the context of a specific live grievance.' Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969). As between petitioners and the municipal officials, the District Court was 'called upon to adjudge the legal rights of litigants in actual controversies,' Liverpool, N.Y. & P.S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885), and 'the interests of (petitioners' class) require the use of . . . judicial authority for (petitioners') protection against actual interference.' United Public Workers of America v. Mitchell, 330 U.S. 75, 90, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947). Since the municipal officials persist in their asserted right to enforce the challenged provisions of the Election Code, there is a 'real and substantial controversy' 'touching the legal relations of parties having adverse legal interests,' Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240—241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937), in which circumstance the concession of the Commonwealth officials could not have the effect of dissipating the existence of a case or controversy. Cf. In re Metropolitan Railway Receivership, 208 U.S. 90, 107—108, 28 S.Ct. 219, 223—224, 52 L.Ed. 403 (1908).


The Court of Appeals also erred. We disagree with its holding that McDonald v. Board of Election Comm'rs, supra, rendered petitioners' constitutional claims wholly insubstantial.

Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. 'Constitutional insubstantiality' for this purpose has been equated with such concepts as 'essentially fictitious,' Bailey v. Patterson, 369 U.S., at 33, 82 S.Ct., at 551, '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); and '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 that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 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 questions sought to be raised can be the subject of controversy." Ex parte Poresky, supra, at 32, 54 S.Ct., at 4, quoting from Hannis Distilling Co. v. Baltimore, supra, 216 U.S., at 288, 30 S.Ct., at 327; see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105—106, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933); McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27, 31, 54 L.Ed. 95 (1909). Under this test, it is clear that McDonald is not a prior decision of this Court that 'foreclose(s) the subject' of petitioners' constitutional attack upon the Pennsylvania statutory scheme; it is demonstrably not a decision that 'leave(s) no room for the...

To continue reading

Request your trial
352 cases
  • De Lancie v. Superior Court of State of Cal., San Mateo County
    • United States
    • California Court of Appeals Court of Appeals
    • October 5, 1979 the least intrusive manner. (O'Brien v. Skinner (1974) 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702 (voting); Goosby v. Osser (1973) 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (voting); Cruz v. Beto (1972) 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (religion); Cooper v. Pate (1964) 378 U.S......
  • Ramirez v. Brown
    • United States
    • California Supreme Court
    • March 30, 1973
    ...laws. (See, e.g., Zeilenga v. Nelson (1971) 4 Cal.3d 716, 719--720, 94 Cal.Rptr. 602, 484 P.2d 578; see also Goosby v. Osser (1973) 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36.) One further preliminary point requires discussion. At the time petitioners were refused registration, respondents' ......
  • Filipino Accountants' Assn. v. State Bd. of Accountancy
    • United States
    • California Court of Appeals Court of Appeals
    • April 25, 1984
    ...(Hagans v. Lavine, supra, 415 U.S. at pp. 537-538, 94 S.Ct. at pp. 1379-1380, 39 L.Ed.2d at p. 588, quoting Goosby v. Osser (1973) 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36.) We know of no principle that would allow us to disregard these views of the highest court in the land. Whe......
  • Nader v. Schaffer
    • United States
    • U.S. District Court — District of Connecticut
    • July 14, 1976
    ...constitutional question raised is not "insubstantial," this three-judge court was convened. 28 U.S.C. § 2281; Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973). Plaintiffs have moved, with supporting affidavits, for summary judgment. Defendants, the Secretary of the State of......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT