Hargrave v. McKinney, Civ. A. No. 68-463-CIV-Tampa.
| Decision Date | 27 June 1969 |
| Docket Number | Civ. A. No. 68-463-CIV-Tampa. |
| Citation | 302 F. Supp. 1381 |
| Parties | Robert H. HARGRAVE et al., Plaintiffs, v. Shellie McKINNEY et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Frank & Grandoff, Tampa, Fla., Glassie, Pewett, Beebe & Shanks, Washington, D. C., for plaintiffs.
V. Carroll Webb, Gen. Counsel and Larry Levy, Asst. Gen. Counsel, Office of Comptroller, Tallahassee, Fla., W. Crosby Few, Tampa, Fla., for the State.
Robert L. Nabors, Titusville, Fla., for defendant J. D. Nash.
David U. Tumin, Tallahassee, Fla., for defendant H. S. Albury.
John W. McWhirter, Jr., Tampa, Fla., for defendant K. C. Bullard.
John L. Graham, Jr., Orlando, Fla., for defendant Earl K. Wood.
William E. Sherman, Deland, Fla., for defendant Dorothy Matt Mills.
Wayne M. Carlisle, Gainesville, Fla., for defendant Shellie McKinney.
J. T. Chancey, Fort Lauderdale, Fla., for defendant W. H. Meeks, Sr.
James R. Adams, Naples, Fla., for defendant A. P. Ayers.
W. J. Ferguson, Lake City, Fla., for defendant Alvin C. Hosford.
F. E. Steinmeyer, III, Tallahassee, Fla., for defendant Roy Lett.
Thomas J. Shave, Jr., Fernandina Beach, Fla., for defendant Ira W. Hall.
Harold F. Johnson, Sanford, Fla., for defendant G. Troy Ray, Jr.
Clyde B. Wells, Defuniak Springs, Fla., for defendant Jack Little.
Thomas C. Britton, and Stuart Simon, Miami, Fla., for defendant R. K. Overstreet.
Jack A. Harnett, Quincy, Fla., for defendant W. A. Summerford.
William J. Rish, Port St. Joe, Fla., for defendant Harland O. Pridgeon.
Before JOHN R. BROWN, Chief Judge, United States Court of Appeals for the Fifth Circuit.
This case proves again the wisdom of resolving in favor of constituting a 3-Judge Court the initial doubts about the necessity for such a Court, as out-lined in Jackson v. Choate, 5 Cir., 1968, 404 F.2d 910; Jackson v. Department of Public Welfare of State of Florida, S.D. Fla., 1968, 296 F.Supp. 1341, and discussed further in City of Gainesville v. Southern Railway, N.D.Ga., 1969, 296 F.Supp. 763. Now—nine months later and after requiring the judicial energies of the Court of Appeals and excluding from a place on the calendar an older case deserving oral argument as a result of expediting this case—it must go back to start all over again as a 3-Judge case.1
Plaintiffs here formally requested the District Judge before whom this case was pending to certify the case to the Chief Judge of the Circuit to convene a 3-Judge Court pursuant to 28 U.S.C.A. §§ 2281, 2284. The District Judge declined to do so and, acting only as a single Judge, dismissed the case for lack of jurisdiction.2
On appeal the Court of Appeals, by a divided panel, reversed the District Court's dismissal and held that (1) there was no § 1341 jurisdictional bar to the maintenance of the action, and (2) the constitutional question presented was "substantial" within the meaning of Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. Hargrave v. McKinney, 5 Cir., 1969, 413 F.2d 320. Accordingly, the case was remanded to the District Court with directions to take appropriate steps to convene a 3-Judge Court.
This prologue serves to illustrate once again the usefulness of the procedure of Jackson v. Choate, supra. Much precious time and energy might have been saved if that procedure had been adopted in the instant case.3
For example, in this case the preliminary questions were first considered and resolved by a single District Judge, then reevaluated and resolved differently by an appellate panel of three Judges. Because of their reversal, the case must now return for consideration of some of the same basic questions by still another panel of three Judges under 28 U.S.C.A. §§ 2281, 2284. Only after their decision will the case be ripe for whatever further appellate consideration might be sought by the parties.
With such a result it is readily apparent that neither time nor judge-power has been conserved by this circuitous process. That the Court of Appeals was divided only augments the practical disadvantages of a decisive initial prediction of the one-Judge or 3-Judge status. In contrast, if the 3-Judge panel had been convened at the outset, that panel would have had open to it all the alternatives outlined in Jackson v. Choate, supra, and substantial amounts of valuable Court and lawyer time might have been saved. And the possibility—even a frequent possibility—of the result being otherwise does not bring about burdens outweighing the advantages. Many times physically assembling the Judges is neither inconvenient nor necessary. And if a decision is initially reached by the 3-Judge Court that it is a one-Judge matter so that the 3-Judge Court is to be dissolved, it is a simple thing to have all three Judges (or a majority of them) join in the ultimate opinion so that little, if any, is left in the event the Court of Appeals subsequently reverses the holding that it is a one-Judge case.4
Order constituting a 3-Judge Court is now entered.
1 commenced: October 31, 1968 Dismissed: December 13, 1968 Expedited and calendared for: March 18, 1969 Court of Appeals decision No. 27140: June 9, 1969
2 Specifically, the District Court held that the suit was barred by 28 U.S.C.A. § 1341.
3 Not surprisingly, 3-Judge cases continue to be big business in the Fifth Circuit as this table covering my tenure as Chief Judge reflects:
Total Designated 3-Judge Cases
(7/17/67 to 5/30/69)
Districts
State Northern Middle Southern Eastern Western Total
Alabama 7 13 4 24
Florida 3 4 10 17
Georgia 21 3 6 30
Louisiana 22 9 31
Mississippi 12 18 30
Texas 13 9 0 8 30
__
TOTAL DESIGNATED SINCE JULY 17, 1967 162
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4 This sort of ingenuity is reflected in Chief Judge Spears' opinions for himself and Circuit Judge Goldberg and District Judge Roberts in ...
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