Haffke v. State of California

• Decision Date: 23 March 1971
• Docket Number: Civ. No. 70-2531.
• Court: U.S. District Court — Central District of California
• Parties: Eugene R. HAFFKE, Petitioner, v. STATE OF CALIFORNIA, Respondent.

325 F. Supp. 544

Eugene R. HAFFKE, Petitioner, v. STATE OF CALIFORNIA, Respondent.

Civ. No. 70-2531.

United States District Court, C. D. California.

March 23, 1971.

Eugene R. Haffke, in pro. per.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Ronald M. Weiskopf, Deputy Atty. Gen., Los Angeles, Cal., for respondent.

MEMORANDUM AND ORDER DENYING MOTIONS TO CONVENE A THREE-JUDGE COURT AND TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT

HAUK, District Judge.

Petitioner alleges he is in a California penal institution pursuant to a conviction rendered against him in the Superior Court of Los Angeles County, Case No. A-160636. In this Petition for Injunctive Relief, he challenges article 1, section 8 of the Constitution of the State of California which authorized the prosecution against him by information in his case. Art. 1, § 8 provides, in part:

"Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. * * *"

Petitioner moves for the convening of a three-judge court pursuant to 28 United States Code sections 2281, 2284 to determine the constitutionality of this section of the California Constitution. He prays for an injunction prohibiting the State of California from prosecuting felonies by information except where waived by defendant as provided in the Federal Rules of Criminal Procedure, and for orders overturning his conviction, requiring him to be released, and prohibiting future prosecution of the felony for which he stands convicted. Petitioner's contentions regarding the constitutional infirmity in the information mode of initiating criminal proceedings were not made at any point in the course of the state proceedings. He raises them for the first time here. Petitioner also moves to proceed in forma pauperis.

The above matter was brought to hearing on March 8, 1971, petitioner not appearing and respondent having appeared by Evelle J. Younger, Attorney General of the State of California, by Ronald M. Weiskopf, Deputy Attorney General. The matter was submitted without argument.

After reviewing the Motions and the Petition, the court is fully advised in the premises and thus orders that the motions to convene a three-judge court and to proceed in forma pauperis be denied and the Petition be dismissed for the following reasons.

The Petition is almost totally devoid of factual allegations. Petitioner does not even allege the particular crime of which he was convicted. However, it may be inferred from the Petition that petitioner has been convicted of a felony and that he was prosecuted by information without having waived prosecution by indictment. We accept these allegations as true for the purposes of this order.

Petitioner has named the State of California as the sole respondent in this action. Respondent argues that it has been well established since the case of Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1889), that a state is immune from federal court suits brought by its own citizens as well as by citizens of another state, Hans v. Louisiana, supra at 9-21, 10 S.Ct. 504; Ex parte State of New York, 256 U.S. 490, 497, 41 S.Ct. 588, 65 L.Ed. 1057 (1920); Duhne v. New Jersey, 251 U.S. 311, 313, 40 S.Ct. 154, 64 L.Ed. 280 (1920); Fitts v. McGhee, 172 U.S. 516, 524, 19 S.Ct. 269, 43 L.Ed. 535 (1898); California v. So. Pacific Co., 157 U.S. 229, 256, 261, 15 S.Ct. 591, 39 L.Ed. 683 (1894); North Carolina v. Temple, 134 U.S. 22, 30, 10 S.Ct. 509, 33 L.Ed. 849 (1889), and that this immunity is not affected by the fact that the case may be one arising under the Constitution or laws of the United States, and is brought against the state under the Civil Rights Act, 42 U.S.C.A. section 1983.¹ Clark v. State of Washington, 366 F.2d 678, 680 (9th Cir. 1966); accord, Loux v. Rhay, 375 F.2d 55, 58 (9th Cir. 1967); Serrano v. People of State of California, 361 F.2d 474 (9th Cir. 1966); Williford v. People of California, 352 F.2d 474, 476 (9th Cir. 1965); Sires v. Cole, 320 F.2d 877, 879 (9th Cir. 1963). See also Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).²

That a state is not a "person" within the meaning of 42 U.S.C.A. section 1983 (Revised Statutes section 1979) was made clear in Clark v. State of Washington, supra, 366 F.2d at 680. As respondent also noted, the injunction spoken of in 28 U.S.C.A. section 2281 on which petitioner relies is directed against "the action of any officer of such State" and not against the state itself.

Failure to name a proper party aside, the petition is wanting in other major respects.

Even assuming that petitioner had named the proper parties in his complaint, the petition for a three-judge court does not set forth a substantial federal question, and therefore a jurisdictional predicate for the establishment of such a court is lacking.

Title 28 U.S.C. section 2281 requires that a three-judge court be convened to issue an injunction against the enforcement of a state statute on the ground that it violates the United States Constitution. This section has consistently been interpreted to require a substantial federal constitutional question before a three-judge court should be convened. California Water Service Co. v. Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Eason v. Dickson, 9 Cir., 390 F.2d 585 (1968).

It is well established that a three-judge federal district court may not be convened merely because a constitutional question is raised in an action for injunctive relief, but the constitutional question which is raised must be a substantial one. There is no requirement to appoint a three-judge court where the complaint does not assert a substantial federal claim. Ex Parte Poresky, 290 U.S. 30, 31-32, 54 S.Ct. 3, 78 L.Ed. 152; accord, California Water Service Co. v. Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938). The cases are legion which similarly hold, both in this (e. g., Eason v. Dickson, 390 F.2d 585, 589 (9th Cir. 1968), cert. denied, 392 U.S. 914, 88 S.Ct. 2076, 20 L.Ed.2d 1373 (1968)) and in other circuits (e. g., Bell v. Waterfront Commission of New York Harbor, 279 F.2d 853, 857 (2d Cir. 1960)).

The lack of substantiality of a federal question, which will preclude the use of a three-judge court, may appear either because the question presented "is `obviously without merit' or because `its unsoundness so clearly results from the previous decisions of the United States Supreme 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.' Citations." Ex Parte Poresky, supra, 290 U.S. at 32, 54 S.Ct. at 4; accord, Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Turner v. City of Memphis, 369 U.S. 350, 353, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962); Green v. Board of Elections of City of New York, 380 F.2d 445, 448 (2d Cir. 1967), cert. denied, 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968); Herald Co. v. Harper, 410 F.2d 125, 128 (8th Cir. 1969); Glisson v. Mayor and Councilmen of Town of Savannah Beach, 346 F.2d 135, 136 (5th Cir. 1965); Glancy v. Parole Bd. of Michigan Dept. of Corrections, 287 F.Supp. 34, 37 (W.D.Mich.1968); Morrison v. State of California by and Through Brown, 238 F.Supp. 22, 23 (S. D.Cal.1964).

The single judge with whom a complaint is filed should not convene a three-judge court where it is plain that no substantial federal question is presented. "In such a case he has power, and it is his duty, to dismiss. Citations." Smith v. State of Claifornia, 336 F.2d 530, 534 (9th Cir. 1964); accord, California Water Service Co. v. Redding, supra, 304 U.S. at 254, 58 S.Ct. 865; Ex Parte Poresky, supra, 290 U.S. at 32, 54 S.Ct. 3; Carrigan v. Sunland-Tujunga Tel. Co., 263 F.2d 568 (9th Cir. 1959), cert. denied, 359 U.S. 975, 79 S. Ct. 893, 3 L.Ed.2d 841 (1959); Wicks v. So. Pacific Co., 231 F.2d 130, 134-135 (9th Cir. 1956); Smith v. Denny, 280 F.Supp. 651, 653 (E.D.Cal.1968).

Poresky made it clear that "the District Judge clearly has the authority to dismiss for the want of jurisdiction when the question lacks the necessary substance and no other ground of jurisdiction appears." Ex Parte Poresky, supra, 290 U.S. at 32, 54 S.Ct. at 4. In California Water Service Co. v. Redding, supra, the Supreme Court viewed the function of the district judge as follows:

"It is therefore the duty of a district judge, to whom an application for an injunction restraining the enforcement of a state statute or order is made, to scrutinize the bill of complaint to ascertain whether a substantial federal question is presented, as otherwise the provision for the convening of a court of three judges is not applicable."

304 U.S. at 254, 58 S.Ct. at 866.

That function of the single district judge continues, and rightly so, despite what might have been otherwise from the amendment to the Three Judge Court Act (28 U.S.C. section 2281) in 1942 (Act of April 6, 1942, c. 210, § 3, 56 Stat. 198, 28 U.S.C. § 2284(5)). See Bell v. Waterfront Commission of New York Harbor, 279 F.2d 853, 857 (2d Cir. 1960); Wicks v. So. Pacific Co., supra, 231 F.2d at 134-135.

The existence of substantial question of constitutionality must be determined by the allegations of the bill of complaint. Mosher v. Phoenix, 287 U.S. 29, 30, 53 S.Ct. 67, 77 L.Ed. 148; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, 53 S.Ct. 549, 77 L.Ed. 1062; accord, Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152.

A review of the petition in the instant case discloses that the question which petitioner would have the three-judge court resolve, is plainly insubstantial. The United States Supreme Court has definitively spoken with approval to the issue of the constitutional authority of a state to initiate...