Johns v. Redeker

• Citation: 406 F.2d 878
• Decision Date: 14 February 1969
• Docket Number: No. 19141-19143.,19141-19143.
• Parties: Stephen JOHNS, Appellant, v. S. REDEKER et al., Appellees. Charles TWIST, Appellant, v. S. REDEKER et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

406 F.2d 878 (1969)

Stephen JOHNS, Appellant, v. S. REDEKER et al., Appellees.

Charles TWIST, Appellant, v. S. REDEKER et al., Appellees.

Nos. 19141-19143.

United States Court of Appeals Eighth Circuit.

February 14, 1969.

Charles H. Clarke, Detroit, Mich., for appellants and filed brief.

Arthur O. Leff, Iowa City, Iowa, for appellees; Richard C. Turner, Atty. Gen. of the State of Iowa, Des Moines, Iowa, and Elizabeth A. Nolan, Asst. Atty. Gen. of the State of Iowa, were with Arthur O. Leff, Iowa City, Iowa, on the brief.

Before VAN OOSTERHOUT, Chief Judge and BLACKMUN and LAY, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

Before us are timely appeals authorized in forma pauperis from judgments of the District Court dismissing two complaints seeking relief against the individual members of the Iowa State Board of Regents for State Educational Institutions, hereinafter referred to as Regents, by way of injunction and damages with respect to the Regents requiring nonresidents of Iowa to pay a higher rate of tuition than resident students at the institutions of higher learning operated by the Regents.

Both actions were commenced as class actions for the benefit of plaintiff Johns and all persons similarly situated who are residents of states other than Iowa and who are or will be students in a school operated by the Regents. The court permitted the cases to be prosecuted as class actions.

The two complaints contain the same basic allegations, to wit, that plaintiffs are residents of states other than Iowa; that they are students at the University of Iowa, an institution operated by the Board of Regents; and that the Regents, pursuant to regulations adopted, require nonresident students of the University and other educational institutions operated under their supervision to pay a substantially higher rate of tuition than charged residents of the state of Iowa. It is alleged that the Regents' exacting of higher tuition from nonresidents is unconstitutional in that it deprives plaintiffs of their rights under the equal protection clause of Amendment Fourteen, the interstate privileges and immunities clause of Article IV, Section 2 of the Constitution, and 42 U.S.C.A. § 1983.

In case No. 19,142, plaintiffs pray for equitable relief enjoining the Regents from enforcing the discriminatory tuition regulations against students who are citizens of other states, and directing the Regents to admit citizens of other states to Iowa's educational institutions on the same tuition terms as Iowans, to the extent facilities are available, after first granting preference to qualified Iowans and giving recognition to certain other priorities. Plaintiffs request that a three-judge court be convened under 28 U.S.C.A. § 2281 to hear and determine the case.

In case No. 19,141, plaintiffs seek to recover all tuition paid by them in excess of sums charged residents from the earliest date open under the statute of limitations to the date of final judgment. The treasurers of each of the state educational institutions operated by the Regents are named as additional defendants in case No. 19,141 and assertion is made that the treasurers have illegally collected the excess tuition charged in violation of their statutory bonds executed pursuant to Iowa Code § 64.2.

After judgment was entered in case No. 19,142, Charles Twist, a student at the University who is a resident of California, was permitted to intervene and was allowed to prosecute an appeal in forma pauperis. Such appeal has been taken and Twist is the appellant in case No. 19,143.

Jurisdiction in these cases is based exclusively on 28 U.S.C.A. § 1343.

The trial court refused to convene a three-judge court on the ground that no substantial federal question was presented. It dismissed the complaint for want of jurisdiction. We affirm.

It is established and undisputed that both Johns and Twist are citizens of the United States and residents of states other than Iowa and that they are students at the University of Iowa who are required to pay the higher nonresident tuition. The ultimate issue presented in all the cases before us is whether any federally guaranteed constitutional rights of the plaintiffs are violated by charging nonresident students a higher tuition than is charged residents of Iowa.

Plaintiffs' principal contention on these appeals is that their complaint in the injunction case presents a substantial federal question on the validity of the nonresident tuition provisions of the Regents' regulations and that hence a single judge is without jurisdiction to dismiss the complaint and that such action could be taken only by a properly constituted three-judge court.

It is well established that a single judge can hear and determine a case in which a three-judge court is requested if there is no substantial federal question presented. Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194; Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512; Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152; Green v. Board of Elections, 2 Cir., 380 F.2d 445, 448; Weir v. United States, 8 Cir., 310 F.2d 149, 152.

The trial court's determination of the lack of substantiality of the federal constitutional issue raised is reviewable by a Court of Appeals. Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794. If no valid basis exists for the lack of substantiality determination, this court's jurisdiction is limited to a reversal and remand with direction to convene a three-judge court. The Supreme Court in California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323, held: "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." See Weir v. United States, supra; Green v. Board of Elections, supra.

As aptly pointed out by the Second Circuit in Green v. Board of Elections, neither of the tests prescribed affords a formula which can be applied to a particular case with mathematical precision. With respect to the application of the tests, the Green court states:

"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."

In Swift & Co. v. Wickham, 382 U.S. 111, 124, 86 S.Ct. 258, 265, 15 L.Ed.2d 294, the Supreme Court, contrary to its prior holdings, determined that a three-judge court is not required in a situation where preemption of federal law prevents the enforcement of a state statute. The decision contains a good discussion of the purposes of 28 U.S.C.A. § 2281. Among other things, the Court states:

"In re-examining the Kesler rule the admonition that § 2281 is to be viewed `not as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such.\'"

* * * * * *

"The purpose of the three-judge scheme was in major part to expedite important litigation: it should not be interpreted in such a way that litigation, like the present one, is delayed while the proper composition of the tribunal is litigated."

Chief Judge Stephenson, who heard these cases, based his determination of lack of substantiality largely upon the opinion of a three-judge court which arose in the same district, Clarke v. Redeker, D.C., 259 F.Supp. 117. The three-judge court which heard the case last cited consisted of Circuit Judge Matthes, Judge Stephenson and Judge Hanson. The opinion concurred in by all of the judges was written by Judge Stephenson. The judges of the Southern District of Iowa are Judge Stephenson and Judge Hanson. The opinion was filed on September 15, 1966. The precise issue involved in the present case was raised and decided in the Clarke case. The Regents were defendants in that case. The same nonresident tuition regulations here involved were there involved. While the plaintiff in that case is a different person than the plaintiffs in the present case, Clarke's counsel appears as counsel for the plaintiffs in the present case.

In the Clarke case, evidence was taken on the reasonableness of the differentiation in tuition charged residents and nonresidents. The three-judge court determined that the nonresident students' constitutional rights were not violated by the exaction from them of a higher tuition charge upon the basis of the following reasons:

"The students at SUI who are classified as nonresidents are charged a higher tuition than resident students. The defendants justify the discrimination primarily on the basis that resident students or their parents pay taxes to the State of Iowa which, in turn, supports and maintains SUI. The higher tuition charged nonresident students tends to distribute more evenly the cost of operating and supporting SUI between residents and nonresidents attending the University. Although there is no way for this Court to determine the degree to which the higher tuition

...