Jackson v. Department of Public Welfare of State of Fla.

• Citation: 296 F. Supp. 1341
• Decision Date: 25 November 1968
• Docket Number: Civ. A. No. 68-568-CIV-EC.
• Parties: Clarence JACKSON et al., Plaintiffs, v. The DEPARTMENT OF PUBLIC WELFARE OF the STATE OF FLORIDA et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

296 F. Supp. 1341

Clarence JACKSON et al., Plaintiffs, v. The DEPARTMENT OF PUBLIC WELFARE OF the STATE OF FLORIDA et al., Defendants.

Civ. A. No. 68-568-CIV-EC.

United States District Court S. D. Florida.

November 25, 1968.

Elizabeth du Fresne, Joseph C. Segor, Miami, Fla., David D. McFadyen, Delray Beach, Fla., Bruce S. Rogow, Alfred Feinberg, Economic Opportunity Legal Services Program, Miami, Fla., Henry A. Freedman, Howard Thorkeison, Columbia Center on Social Welfare Policy and Law, New York City, for plaintiffs.

S. Strome Maxwell, State Dept. of Public Welfare, Jacksonville, Fla., Eugene Edward Durrance, State Bd. of Public Welfare, Jacksonville, Fla., for defendants.

Before JOHN R. BROWN, Chief Judge, United States Court of Appeals for the Fifth Circuit.

JOHN R. BROWN, Chief Judge.

The Plaintiffs formally requested Judge Choate, before whom this proceeding was pending, to certify the case to the Chief Judge of the Circuit to convene a 3-Judge District Court pursuant to 28 U.S.C.A. §§ 2281, 2284. Judge Choate declined to do so "on the basis that no substantial constitutional question is involved." Thereafter the Plaintiffs in Misc. 1071 sought mandamus from the Fifth Circuit to compel Judge Choate to certify the matter to the Chief Judge. It came to my attention since in the submission of non-calendared matters it was routinely assigned by the Clerk under established procedures to a panel of which I was a member.

As the one thing we do not need in this day of exploding everything —including exploding dockets¹ — is more cases to hear, this is the time for exploiting to the utmost all resources of judicial inventiveness to enhance productivity.² On this approach there is no need for the writ of mandamus where the Chief Judge is a member of the panel and has direct personal knowledge of the pleadings and the request for the convening of a 3-Judge Court. Consequently I enter the special order,³ now frequently used, designating a 3-Judge Court and stating that whether the question presented is properly a 3-Judge matter is initially for the determination of the 3-Judge Court.

To me, the problem is not simply one of ultimate power or its reflex of duty and responsibility. Hence I do not even begin to question the soundness of the extended treatment developed by Judge Biggs (then Chief Judge of the Third Circuit) concerning the power and duty of the Chief Judge to ascertain whether a case necessitates the convening of a 3-Judge Court.⁴ Theoretically, this solo travail should be the indispensable first step. But as a practical matter in a world of practical challenges in judicial administration it has little to offer especially in this Circuit where we have so very many requests for 3-Judge Courts.⁵

Except for cases on which there can be no doubt at all, the alternatives to certification and the constituting of a 3-Judge Court are unsatisfactory and administratively disadvantageous with no compensating redeeming virtue of a substantive kind. Thus, if the District Judge does not request the Chief Judge of the Circuit to constitute a 3-Judge Court he may face a writ of mandamus in the Court of Appeals — an awkward and often time-consuming appellate device at best. If he does request a 3-Judge Court and the Chief Judge refuses to constitute the 3-Judge Court then the Chief Judge is subject to mandamus in the Supreme Court — an even more perilous route considering the overburdens of that tribunal. If without such intervening peremptory mandamus proceedings the District Judge undertakes to hear the question as a 1-Judge Court, then on appeal, the Court of Appeals will have to reverse it for a retrial on the merits by a 3-Judge Court⁶ unless it can satisfy itself that under the restrictive standards enunciated by the Supreme Court there is no substantial question of constitutional validity or invalidity presented.⁷ The prospect of this judicial travail with all of its built-in difficulties becomes all the more wasteful when it is kept in mind that the decision by the one group of three Judges — each of whom is eligible to participate in the remanded 3-Judge trial — is whether three Judges, not just one should initially hear and determine facts and law.⁸ Hence, unless it is determined that it was an open and shut case three Judges must pass on the merits even though it means that three more must do so again.

In this day and time of dynamic expansion of constitutional principles and their application to new and sometimes unheard of situations it takes judicial prescience of a Delphic order to say with certainty that the attack is insubstantial. It is the better course — certainly from an administrative standpoint — to forgo the doubts, constitute a 3-Judge Court, and allow that court to determine initially this and the other issues.

To begin with it does not necessarily mean the expenditure of three times the judicial energy. These cases, most often, involve a pure question of law which can readily be determined on briefs without the Judges physically assembling in one place to convene a court session formally.⁹

Frequently in resolving the threshold issue of substantiality — i. e., the need for a 3-Judge Court — the Court has to go to the very merits of the case. Where that preliminary, albeit perhaps decisive, question becomes shrouded in doubt, indeed the slightest doubt, then the Judges may construct the opinion and decree in a way to give trial court finality, no matter which way the appellate review thereafter goes. Assuming a conclusion that it is a one-Judge, not a three-Judge matter, all of the Judges may expressly indicate a joinder in (a) that holding and also (b) the holding on the merits by the single Judge to whom the case is thereby automatically remanded. On appeal to the Court of Appeals which brings into review the merits of the decree by the single-Judge and the correctness of the 3-Judge order dissolving the 3-Judge Court, the Court of Appeals has the entire case before it. If the Court of Appeals finds the question insubstantial it would, of course, affirm the refusal to request a 3-Judge Court and consistent with that holding it could affirm, or for that matter in some situations reverse on the merits. If the Circuit Court finds that the case was properly one for the 3-Judge Court, it would have to reverse the order dissolving the 3-Judge Court without examining the merits of the two orders—one by the single Judge, and one by the 3 Judges joining in the single Judge order (or vice versa). This would technically then call for remand to the District Court to permit the direct, exclusive appeal to the Supreme Court. 28 U.S.C.A. § 1253. But the remand would not be for a 3-Judge trial or hearing since one will have been had. It would require nothing more formidable than the confirmatory reentry of the earlier "conditional" joinder order and thus the "procedure would be pruned of much of its burdensome character"¹⁰ of another group of three Judges having to determine thereafter a cause already substantially determined by a group of three Judges.¹¹ And, of course, the stronger the doubt about insubstantiality the greater is the need for, and advantage of, constituting a 3-Judge Court.¹²

Order in accordance with opinion.

ORDER

It having come to my attention as a member of a panel of the Fifth Circuit in Jackson v. Choate, 5 Cir., 1968, 404 F.2d 910 seeking mandamus, that there is, or may be, brought in question the constitutionality of certain statutes of Florida or practices thereunder and for the reasons set out in the opinion filed herein, it appears that a 3-Judge Court should be constituted, I, John R. Brown, Chief Judge of the Fifth Circuit, hereby designate the Honorable David W. Dyer, United States Circuit Judge, and the Honorable William O. Mehrtens, United States District...