Johnson Bonding Co., Inc. v. Com. of Ky.

• Decision Date: 22 September 1976
• Docket Number: Civ. A. No. 76-24.
• Citation: 420 F. Supp. 331
• Parties: JOHNSON BONDING CO., INC., Plaintiff, v. COMMONWEALTH OF KENTUCKY et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

420 F. Supp. 331

JOHNSON BONDING CO., INC., Plaintiff, v. COMMONWEALTH OF KENTUCKY et al., Defendants.

Civ. A. No. 76-24.

United States District Court, E. D. Kentucky.

September 22, 1976.

COPYRIGHT MATERIAL OMITTED

Harold G. Slone, Lexington, Ky., for plaintiff.

Robert F. Stephens, Atty. Gen., Frankfort, Ky., C. Gibson Downing, Jr., Harry B. Miller, Jr., Miller, Griffin & Marks, Lexington, Ky., for defendants.

MEMORANDUM OPINION

SILER, District Judge.

This is an action for declaratory and injunctive relief in which the plaintiff bonding company seeks the convening of a three-judge panel to consider its claim that House Bill No. 254 (hereinafter "the Act"), passed during the regular 1976 session of the Kentucky General Assembly, violates the United States and Kentucky Constitutions.

Briefly stated, plaintiff contends that the Act, which, inter alia, makes it unlawful to engage in the business of bail bondsman in the Commonwealth of Kentucky, violates the Eighth Amendment's prohibition against "excessive bail"; deprives it of liberty and property without due process of law, and denies it equal protection of the laws in violation of the Fifth and Fourteenth Amendments"; deprives it of its right to contract "as guaranteed by Amendment 14," "Article 1, Section 5" of the United States Constitution, and 42 U.S.C. § 1983; and, finally, violates the doctrine of separation of powers.

Defendants have filed a motion to dismiss on grounds of: (1) failure to state a claim upon which relief can be granted, (2) collateral estoppel or res judicata, and (3) that plaintiff raised these issues in state court and is now precluded from asserting them here under the doctrine of England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). However, plaintiff has requested a three-judge court to consider his application for injunctive relief. Under these circumstances ordinarily a "single judge shall not . . . dismiss the action, or enter a . . . final judgment," 28 U.S.C. § 2284(5), except as noted hereinafter.

JURISDICTION

The Court's initial inquiry must be to determine whether subject matter jurisdiction is present. The United States Supreme Court has:

Always recognized a single judge's power to dismiss a complaint for want of general subject-matter jurisdiction, without inquiry into the additional requisites specified in §§ 2281 and 2282.

Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 97 n. 14, 95 S.Ct. 289, 294, 42 L.Ed.2d 249 (1974). Accord, Ex parte Poresky, 290 U.S. 30, 31, 54 S.Ct. 3, 78 L.Ed. 152 (1933).

Plaintiff attempts to place jurisdiction in this Court under 28 U.S.C. § 1531 (sic), a non-existent statute. It also claims jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Civil Rights Act, 42 U.S.C. § 1983. Neither of the latter two statutes alone confers jurisdiction on the Court. They merely create causes of action. See Hagans v. Lavine, 415 U.S. 528, 535, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (42 U.S.C. § 1983); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950) (28 U.S.C. § 2201). However, in paragraph number 6 of the complaint, plaintiff alleges that the amount in controversy exceeds $10,000.00 exclusive of interest and costs and "arises under the Constitution and laws of the United States." We assume, therefore, that the jurisdictional statute plaintiff has in mind is 28 U.S.C. § 1331. The allegations of the complaint are sufficient to come within this statute.

THREE JUDGE COURT

The "conditions precedent to convening a three-judge court under 2281 and 2284" are threefold: (1) the constitutional question raised must be substantial; (2) the action must seek to enjoin a state official from executing a statute of statewide application; and (3) the complaint must, at least formally, allege a basis for equitable relief. Gonzalez v. Automatic Employees Credit Union, supra, 419 U.S. at 94, 95 S.Ct. 289; Noe v. True, 507 F.2d 9 (6th Cir. 1974). We consider these requirements in reverse order.

Plaintiff, in paragraph 15, alleges "that it will suffer great and irreparable injury for which there is no adequate remedy at law." Therefore, the Court finds that the complaint, at least formally, alleges a basis for equitable relief.

The statute in question is of statewide application. However, there is some question whether the Governor and Attorney General of Kentucky are the proper state officials to be enjoined from executing the statute.

Plaintiff alleges in paragraph number 3 of the complaint that the Governor and Attorney General:

are made Defendants herein for the reason that this action involves the enforcement, operation, and execution of a state statute and the aforementioned officers are required to have at least (5) days notice of any hearing on this Complaint.

We think notice to these particular officers is required under 28 U.S.C. § 2284(2) only because of the obvious need to advise them that the constitutionality of a state statute is being called into question. This does not mean that they are always the proper defendants.

Title 28 U.S.C. § 2281 requires a three-judge court to consider an application for an injunction to restrain "the action of any officer of such State in the enforcement or execution of such statute." (Emphasis supplied.) The United States Supreme Court has said that "this requirement is one of substance, not of form, and it is not satisfied by joining, as nominal parties defendant state officers whose action is not the effective means of the enforcement or execution of the challenged statute." (Emphasis supplied.) Wilentz v. Sovereign Camp, 306 U.S. 573, 579-80, 59 S.Ct. 709, 713, 83 L.Ed. 994 (1939). A careful reading of the Act discloses no responsibility of the Governor or the Attorney General for the enforcement or execution of this statute. The Act provides that it is to be executed and enforced by the various Kentucky courts and their clerks. Except for the general provision in Section 81 of the Kentucky Constitution that the Governor "shall take care that the laws be faithfully executed," the Court finds no Kentucky authority for any power in the Governor or Attorney General which would enable either of them to comply with an injunction enjoining the enforcement of this statute, if a three judge court ultimately finds that the plaintiff is entitled to relief. In short, the state officers who must be enjoined are those who have responsibility for the enforcement or execution of this statute. See Ashenhurst v. Carey, 351 F.Supp. 708 (N.D.Ill.1972). The Court has some question at this juncture as to whether this criterion for empaneling a three judge court is met.

(The Court notes, in this regard, that two suits challenging the validity of the Act were filed in state court. In one, brought in Jefferson Circuit Court, Louisville, the Bonding Association of Kentucky and certain bonding companies sought, inter alia, to enjoin David L. Armstrong, the Commonwealth's Attorney for the 30th Judicial District of Kentucky, who, it was alleged, "is charged with the responsibility for enforcing, within such district, the statutes of Kentucky." The other suit was brought in Fayette Circuit Court by the Commonwealth of Kentucky against certain bonding companies, including the plaintiff herein.)

However, in view of the desirability of a speedy resolution of the three-judge court question, the Court will consider whether the third "condition precedent" is met, so that this action may go forward with as much speed as possible under the circumstances.

The most important requirement for the convening of a three-judge court is whether plaintiff's claim presents a "substantial federal question."

"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 . . . (the Supreme) court as to foreclose the subject." California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938).

In evaluating prior decisions of the United States Supreme Court, we are guided by the language of Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973):

"Constitutional insubstantiality" . . has been equated with such concepts as "essentially fictitious," . . . "wholly insubstantial," . . . "obviously frivolous," . . . and "obviously without merit," . . . . The limiting words "wholly" and "obviously" have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render the claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if "`its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.'"

While plaintiff claims the Act violates certain provisions of the Kentucky Constitution, "the `unconstitutionality' clause of § 2281 can hardly be thought to encompass the voiding of a state statute for inconsistency with the state constitution." (Emphasis supplied.) Swift & Co. v. Wickham, 382 U.S. 111, 126 n. 25, 86 S.Ct. 258, 261, 15 L.Ed.2d 194 (1965). Therefore, our consideration will be limited to the claimed inconsistencies of the Act with the United States Constitution.

FIFTH AND FOURTEENTH AMENDMENT CLAIMS

Plaintiff claims that the Act deprives him of liberty and property without due process of law and denies him equal protection of the law in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff's "propert...