Goosby v. Osser
| Decision Date | 26 October 1971 |
| Docket Number | No. 71-1935.,71-1935. |
| Citation | 452 F.2d 39 |
| Parties | Andrew C. GOOSBY, Holmesburg Prison, Philadelphia, Pa., et al., Appellants, v. Maurice S. OSSER, City Commissioner, City Hall Annex, Philadelphia, Pa., et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Joseph A. Torregrossa, Philadelphia, Pa., for appellants.
Harry Wolov, Philadelphia, Pa., for appellees.
Barry A. Roth, Deputy Atty. Gen., Dept. of Justice, Harrisburg, Pa., for the Commonwealth of Pa.
Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.
Submitted under Third Circuit Rule 12(6) on October 21, 1971.
Rehearing En Banc Denied December 17, 1971.
This appeal from the district court's order of October 6, 1971 requires us to decide whether the court erred in dismissing plaintiffs' complaint. We are persuaded that there was no error and will affirm.
We have concluded that the substantive constitutional challenge to the two Pennsylvania statutes was wholly insubstantial and that the convening of a statutory court was not required under 28 U.S.C.A. § 2281. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962).
Plaintiffs, untried detainees in Philadelphia prisons, have alleged that the First Class County (Philadelphia) Permanent Registration Act of March 30, 1937, P.L. 115, as amended by the Act of August 14, 1963, P.L. 900, 25 Purd.Stat. Anno. § 623-1 et seq., and Pennsylvania Election Code, Act of 1937, P.L. 1333, Art. I, Sec. 102, as amended by the Act of August 13, 1963, P.L. 707, 25 Purd. Stat.Anno. § 2602(w) (12), offend the equal protection clause and are therefore unconstitutional. The former statute regulates voting registration; the latter defines qualified absentee elector.
Thus, at the threshold, we emphasize that the attacked statutes do not control the right to vote. The distinction between the mechanics of controlling the exercise of the franchise, and its selective distribution, is made clear in McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). Compare Stephens v. Yeomans, 327 F. Supp. 1182 (D.N.J.1970). Regulations setting forth the mechanics of controlling the exercise of the franchise are measured by the test that "statutory classifications will be set aside only if no grounds can be conceived to justify them." McDonald, supra, 394 U.S. at 809, 89 S.Ct. at 1408.
Measured by this test, the Pennsylvania legislative schema requiring that places of registration be open to the public, Devlin v. Osser, 434 Pa. 408, 254 A.2d 303 (1969), and that absentee ballots not be made available to those "confined in a penal institution or a mental institution," 25 Purd.Stat.Anno. § 2602(w) (12), clearly may not be set aside. Ray v. Commonwealth of Pennsylvania, 442 Pa. 606, 276 A.2d 509 (1971).
We have carefully considered each of the contentions raised by the appellants and find them to be without merit. Under ordinary circumstances, we would be inclined to present an extended discussion of the controlling issues. Since the emergency nature of this appeal suggests an immediate adjudication we have limited our opinion to this brief statement.
The judgment of the district court dismissing the complaint will be affirmed.
Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, ROSEN, and HUNTER, Circuit Judges.
Upon consideration of the petition for rehearing, the prayer of the petition is denied. Judges Van Dusen, Adams and Rosenn would grant the petition for rehearing.
Only in the most unusual circumstance do I believe that a judge of this court should dissent with opinion from an order of the court denying rehearing en banc. However, in my judgment, this case constitutes such an occasion.
Rule 35 of the Federal Rules of Appellate Procedure indicates that when there is no question of uniformity of decisions rehearing en banc should occur only "when the proceeding involves a question of exceptional importance." The issues "of exceptional importance" in this case are two-fold — (1) the right of unconvicted indigent prisoners to vote, and (2) the proper adjudicatory role of a court of appeals.
As for the first issue, the complaint alleges that in Philadelphia more than 2,000 individuals, while charged with but not convicted of a crime, are incarcerated because of an inability to secure bail and are being unconstitutionally deprived of their right to vote. The plaintiffs, class representatives, assert that they possess all the qualifications of electors set forth in the Pennsylvania Election Code, Tit. 25 Pa.Stat.Ann. § 2811, but because of the operation of certain other sections of the Election Code and the activities of local election officials they cannot exercise their franchise at all.
Relying on McDonald v. Board of Election Com'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969), the original panel found the allegations of the complaint to be "wholly insubstantial." In this regard, we are reminded of the language contained in Reynolds v. Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964):
After the careful scrutiny mandated by Reynolds, it is not at all clear that McDonald controls the present situation. The unconvicted inmates in McDonald alleged in their complaint no more than the fact that they were not permitted to vote in Illinois by absentee ballot, and that this provision of the Illinois voting law violated their right to equal protection since the physically infirm were allowed to vote by absentee ballot. The record in McDonald never suggested that these prisoners had attempted to use alternative means to exercise their franchise. This...
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