Green v. Board of Elections of City of New York

• Decision Date: 13 June 1967
• Docket Number: Docket 30933.,No. 388,388
• Citation: 380 F.2d 445
• Parties: Gilbert GREEN, Plaintiff-Appellant, v. BOARD OF ELECTIONS OF the CITY OF NEW YORK, Louis J. Lefkowitz, Attorney General of the State of New York, and Frank S. Hogan, District Attorney of the County of New York, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

380 F.2d 445 (1967)

Gilbert GREEN, Plaintiff-Appellant, v. BOARD OF ELECTIONS OF the CITY OF NEW YORK, Louis J. Lefkowitz, Attorney General of the State of New York, and Frank S. Hogan, District Attorney of the County of New York, Defendants-Appellees.

No. 388, Docket 30933.

United States Court of Appeals Second Circuit.

Argued April 3, 1967.

Decided June 13, 1967.

COPYRIGHT MATERIAL OMITTED

J. Lee Rankin, Corporation Counsel of City of New York, New York City, for defendant-appellee Board of Elections of City of New York.

Leonard B. Boudin, New York City (Rabinowitz & Boudin, New York City; Victor Rabinowitz, Joan Goldberg and Arthur Schutzer, New York City, of counsel), for appellant.

Brenda Soloff, Asst. Atty. Gen., (Louis J. Lefkowitz, Atty. Gen. of State of New York; Samuel A. Hirshowitz, First Asst. Atty. Gen.), for other defendants-appellees.

Frank S. Hogan, Dist. Atty. of County of New York, New York City, pro se.

Before WATERMAN, FRIENDLY and ANDERSON, Circuit Judges.

FRIENDLY, Circuit Judge:

Plaintiff Gilbert Green was one of the defendants convicted in the well-known case of United States v. Dennis, 183 F.2d 201 (2 Cir. 1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), of having conspired to organize the Communist Party as a group to teach and advocate the overthrow and destruction of the government by force and violence, and to advocate and teach the duty and necessity of overthrowing and destroying the government by such means, 18 U.S.C. § 11 (1946 ed.), now, as amended, 18 U.S.C. § 2385. He was sentenced to serve a term of five years imprisonment and to pay a fine of $10,000. After the Supreme Court's mandate had issued, he failed to surrender to serve his term and remained a fugitive for more than four and a half years. When he finally surrendered, he was convicted of contempt, 18 U.S.C. § 401(3), and was sentenced for an additional three years. See Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L. Ed.2d 672 (1958). He was released on parole in 1961 and this status was concluded in 1963. Both offenses constituted felonies under federal law, 18 U.S.C. § 1(1).

Section 152 of the New York Election Law, McKinney's Consol.Laws, c. 17, enacted pursuant to Article 2, § 3, of that state's constitution,¹ provides in pertinent part that no person "convicted of a felony in a federal court of an offense of which such court has exclusive jurisdiction, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the president of the United States." Green has not been; indeed he has not sought such relief. New York's Penal Law, McKinney's Consol.Laws, c. 40 makes it a felony for any person to register or attempt to register as an elector knowing that he will not be a qualified voter, §§ 510-a and 752. Claiming that these New York statutes deprived him of various rights guaranteed by the Constitution of the United States, Green filed suit in the District Court for the Southern District of New York seeking a declaratory judgment of nullity and negative and affirmative injunctive relief, both temporary and permanent. He asked that a court of three judges be convened pursuant to 28 U.S.C. § 2281 and § 2284 to hear his case. Later he moved for summary judgment and the Attorney General cross-moved to dismiss the complaint both for lack of jurisdiction in failing to present a substantial federal question and also on the merits in failing to state a claim on which relief can be granted. Concluding that the complaint did not state a substantial federal claim, Judge Tyler denied plaintiff's requests and granted the Attorney General's motion to dismiss for want of jurisdiction, 259 F.Supp. 290. Green appeals from that order.

It is common ground, as we recently reaffirmed in Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 130 (2 Cir. 1967), citing many cases, that "when a complaint for an injunction makes a claim of unconstitutionality which on its face would require a court of three judges * * *, the single district judge should consider whether the claim is substantial and, if he finds it is not, refuse to convoke a court of three judges and dismiss the action." It is also common ground that such a decision by a district judge is reviewable in the court of appeals and that the criterion is that, as said in California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 866, 82 L.Ed. 1323 (1938): "The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject."

In the nature of things, these tests cannot be of mathematical precision. Previous decisions do not always foreclose new consideration even though they are directly on point, as the single district judges correctly thought in convoking three-judge courts in the second flag salute case, Barnette v. West Virginia State Board of Election, 47 F.Supp. 251 (D.W.Va.1942), aff'd, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674 (1943), overruling Minersville School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84 L.Ed. 1375, 127 A.L.R. 1493 (1940), and in the desegregation case, Brown v. Board of Education, 98 F.Supp. 797 (D.Kan.1951), rev'd. 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R. 2d 1180 (1954), overruling Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1897).² The other basis for finding lack of substantiality, obvious lack of merit, is still less precise; judges have not been fitted with identical lenses for detecting just when lack of merit is "obviously" such. Although a court of appeals must conscientiously review a single district judge's determination that lack of merit not only exists but is obvious, see Schneider v. Rusk, 372 U.S. 224, 83 S.Ct. 621, 9 L.Ed.2d 695 (1963), little is gained by a finical attitude on the latter score. Although it has long been held that § 2281 applies to the denial as well as the grant of injunctions, Ex parte Metropolitan Water Co., 220 U.S. 539, 31 S.Ct. 600, 55 L.Ed. 575 (1911), and even to dismissal before trial, Ex parte Northern Pacific Ry., 280 U.S. 142, 50 S.Ct. 70, 74 L.Ed. 233 (1929), the evil at which the statute was aimed was the affront to the dignity of a state by a single judge's enjoining enforcement of a statute or regulation as unconstitutional, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154-155, 83 S.Ct. 554, 9 L. Ed.2d 644 (1963); D. Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 5-11, (1964). When the single district judge has denied the injunction and three circuit judges are convinced that the pleadings show the claim to lack merit, they accomplish little save elegantia juris by reversing because they are not completely certain that the lack was so obvious as to have warranted dismissal by one judge rather than three. See Offermann v. Nitkowski, 378 F.2d 22 (2 Cir. 1967). The only practical consequence, if the three judge court should share the views of lack of merit entertained by the single district judge and themselves, as they must confidently suppose it will, is that the plaintiff could then appeal directly to the Supreme Court under 28 U.S.C. § 1253. But this is hardly of great moment in view of the immediate availability of certiorari to the court of appeals and the likelihood of this being granted if the Supreme Court thinks a constitutional claim may have been erroneously rejected.

The Constitution as originally adopted said remarkably little about voting qualifications. Article I, § 2, provided that the House of Representatives shall be chosen by electors from each state who "shall have the qualifications requisite for electors of the most numerous branch of the state legislature,"³ and Article II, § 1, authorized each state to appoint presidential electors "in such manner as the legislature thereof may direct." Nothing was said in regard to state electors. The only provisions of the early Constitution claimed to be offended by the New York statute are the prohibition against a state's passing a bill of attainder, Art. I, § 10, Cl. 1, and the Eighth Amendment's proscription of "cruel and unusual punishments," held to have been made applicable to the states by the Fourteenth, Robinson v. State of California, 370 U. S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

That the New York statutes are not bills of attainder is sufficiently demonstrated by the fact that in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion), after stating that the bill of attainder clause only applies "to statutes imposing penalties," see also United States v. Lovett, 328 U.S. 303, 315-316, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946), the Chief Justice used statutes depriving felons of voting rights to illustrate what was not a penal law. He there said that "In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purpose of punishment — that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose. The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature. * * * Because the purpose of the statute disenfranchising the convicted felon is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise." 356 U.S. at 96-97, 78 S.Ct. at 595. See also De Veau v. Braisted, 363 U.S. 144,...