Johnson v. Lee, Civ. A. No. 12404.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Writing for the CourtGeorge R. Tiernan, State's Atty. for New Haven County, New Haven, Conn., defendant pro se
Citation281 F. Supp. 650
PartiesRonald JOHNSON, Harry J. Bonner and James A. Cotter, Individually and on behalf of others similarly situated, Plaintiffs, v. Richard C. LEE, Individually and as Mayor of the City of New Haven, George R. Tiernan, Individually and as State's Attorney for the County of New Haven, Hon. Raymond J. Devlin, Individually and as Judge of the Superior Court for the County of New Haven, Francis V. McManus, Individually and as Chief of Police of the City of New Haven, Harold E. Hegstrom, Individually and as Connecticut State Jail Administrator, Leo J. Mulcahy, Individually and as Commissioner of State Police of the State of Connecticut, Robert K. Killian, Individually and as Attorney General of the State of Connecticut, John Doe, Individually and as Agent in Charge of the New Haven Office of the Alcohol Tax Unit of the United States Internal Revenue Service, and Richard Roe, Individually and as the Agent in Charge of the New Haven Office of the Connecticut Alcohol & Tobacco Tax Division, Defendants.
Decision Date14 February 1968
Docket NumberCiv. A. No. 12404.

281 F. Supp. 650

Ronald JOHNSON, Harry J. Bonner and James A. Cotter, Individually and on behalf of others similarly situated, Plaintiffs,
v.
Richard C. LEE, Individually and as Mayor of the City of New Haven, George R. Tiernan, Individually and as State's Attorney for the County of New Haven, Hon. Raymond J. Devlin, Individually and as Judge of the Superior Court for the County of New Haven, Francis V. McManus, Individually and as Chief of Police of the City of New Haven, Harold E. Hegstrom, Individually and as Connecticut State Jail Administrator, Leo J. Mulcahy, Individually and as Commissioner of State Police of the State of Connecticut, Robert K. Killian, Individually and as Attorney General of the State of Connecticut, John Doe, Individually and as Agent in Charge of the New Haven Office of the Alcohol Tax Unit of the United States Internal Revenue Service, and Richard Roe, Individually and as the Agent in Charge of the New Haven Office of the Connecticut Alcohol & Tobacco Tax Division, Defendants.

Civ. A. No. 12404.

United States District Court D. Connecticut.

February 14, 1968.*


281 F. Supp. 651

William M. Kunstler, New York City, Michael J. Kennedy, New York City, Jonathan W. Lubell, Westport, Conn., and Stephen L. Fine, Westport, Conn., for plaintiffs.

Thomas F. Keyes, Jr., Corp. Counsel, New Haven, Conn. (Roger J. Frechette, Asst. Corp. Counsel, New Haven, Conn., on the brief) for defendants Mayor Richard C. Lee and Chief of Police Francis V. McManus.

George R. Tiernan, State's Atty. for New Haven County, New Haven, Conn., defendant pro se.

Robert K. Killian, Atty. Gen., Hartford, Conn., defendant pro se and for defendants Hon. Raymond J. Devlin, Harold E. Hegstrom, Leo J. Mulcahy, and "Richard Roe".

John Cassidento and J. Daniel Sagarin, Asst. U. S. Attys., New Haven, Conn., for defendant "John Doe".

281 F. Supp. 652

TIMBERS, Chief Judge.

QUESTION PRESENTED

Plaintiffs, currently on trial in a criminal case in the Superior Court of the State of Connecticut, New Haven County, where they are charged with conspiring to injure persons and property by means of explosives, have filed a complaint in this Court seeking declaratory and injunctive relief to halt the state court criminal trial.

Plaintiffs' motions in this Court to convene a three-judge district court and for issuance of a temporary restraining order to enjoin the state court prosecution present the threshold question of this Court's jurisdiction over the subject matter of the action.

After a hearing at which counsel for all parties were fully heard and after considering plaintiffs' complaint, motions, affidavits and exhibits, and briefs by counsel for all parties, the Court concludes that it does not have jurisdiction over the subject matter of the action. Accordingly, plaintiffs' motions to convene a three-judge district court and for issuance of a temporary restraining order are denied, and the complaint is dismissed.

PLAINTIFFS' CLAIMS AND RELIEF SOUGHT IN THIS COURT

The verified complaint filed February 8, 1968 in this civil action seeks the convening of a three-judge district court pursuant to 28 U.S.C. §§ 2281 and 2284 to declare invalid and enjoin the enforcement of Conn.Gen.Stat. § 53-80 (Explosives Intended for Injury of Person or Property) and Conn.Gen.Stat. § 54-197 (Conspiracy) on the ground that these statutes are unconstitutional on their face and as applied to plaintiffs, and that prosecutions and threatened prosecutions pursuant thereto are causing irreparable harm to plaintiffs and those similarly situated. On the basis of this complaint and plaintiffs' motions to convene a three-judge court and to issue a temporary restraining order, the Court on February 9 ordered a hearing on February 12 to consider the motions and the threshold question of jurisdiction.

Plaintiffs Johnson and Bonner each alleges he is a "black citizen" of the United States residing in New Haven; plaintiff Cotter alleges he is a "white citizen" of the United States residing in New Haven. Each belongs to the Hill Parents Association, described by plaintiffs as an incorporated association "dedicated to the achievement of freedom, equality and a more abundant and fulfilling life for the residents of the black ghetto areas of the City of New Haven." Plaintiffs bring the instant action individually and on behalf of others similarly situated.

Plaintiffs and three others have been on trial since February 6, 1968 in the Superior Court of the State of Connecticut, New Haven County, for conspiring in violation of Conn.Gen.Stat. §§ 53-80 and 54-197, the laws which plaintiffs now attack. Specifically plaintiffs are charged in the Superior Court by written information dated January 2, 1968 as follows:

"that on divers days from November 2, 1967, to December 23, 1967, at the City of New Haven and other places in the County of New Haven and State of Connecticut, they did combine, conspire, confederate, and agree together and with divers other persons to cause injury to persons and property in the City of New Haven and divers other places in the County of New Haven by means of explosive materials and compounds which they acquired for said purposes aforesaid, in violation of Section 54-197 of the General Statutes."

Defendants are Richard C. Lee, Mayor of the City of New Haven; George R. Tiernan, State's Attorney for New Haven County; Hon. Raymond J. Devlin, Judge of the Superior Court of the State of Connecticut; Francis V. McManus, Chief of Police of the City of New Haven; Harold E. Hegstrom, Connecticut State Jail Administrator; Robert K. Killian, Attorney General of the State of

281 F. Supp. 653
Connecticut; Leo J. Mulcahy, Commissioner of the Connecticut State Police; "John Doe", whose real identity is unknown to plaintiffs, Agent in charge of the New Haven Office of the Alcohol Tax Unit of the United States Internal Revenue Service; and "Richard Roe", whose real identity is unknown to plaintiffs, Agent in charge of the New Haven Office of the Connecticut Alcohol & Tobacco Tax Division. Each defendant is sued individually and in his official capacity

Plaintiffs' complaint alleges jurisdiction in this Court pursuant to 28 U.S.C. §§ 1331(a), 1343(3) and (4), 2201, 2202, 2281 and 2284, and 42 U.S.C. §§ 1981, 1983 and 1985 and under the First, Fifth, Sixth, Thirteenth and Fourteenth Amendments to the Constitution of the United States. Plaintiffs also allege that the amount in controversy exceeds $10,000, exclusive of interest and costs.

Plaintiffs allege as a first cause of action that under color of Connecticut statutes defendants have embarked upon a common plan to deprive them and other members of the Hill Parents Association of their constitutional rights by prosecuting them pursuant to Conn.Gen.Stat. § 54-197 for conspiracy to violate Conn. Gen.Stat. § 53-80. Plaintiffs claim that the prosecutions are without any basis in fact and that the statutes are void and illegal on their face and as applied to plaintiffs because they violate the Constitution of the United States and in particular the First, Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments thereto. More particularly plaintiffs aver that the statutes violate the guarantees of free speech, press, assembly, the right to petition the government for redress of grievances, and the guarantee of due process of law in that they are vague and indefinite and fail to meet the requirement of certainty in criminal statutes. Plaintiffs contend that the sole purpose of defendants' threatening to enforce these statutes is to deter and prevent plaintiffs and others connected with the Hill Parents Association from exercising the aforementioned constitutional rights and from working to enforce freedom and equality under the law as guaranteed by the Thirteenth, Fourteenth and Fifteenth Amendments.

As a second cause of action, plaintiffs allege that they have not been afforded sufficient opportunity to obtain counsel of their choice in violation of the Sixth Amendment to the Constitution of the United States.

In addition to seeking injunctive and declaratory relief through the convening of a three-judge district court, plaintiffs seek a temporary restraining order pursuant to 28 U.S.C. § 2284(3) enjoining defendants from enforcing in any way against plaintiffs the provisions of Conn. Gen.Stat. §§ 54-197 and 53-80 or, in the alternative, continuing the trial of plaintiffs in the Superior Court for a reasonable period to permit them to obtain counsel of choice.

CLAIMS THAT STATE STATUTES ARE UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED TO PLAINTIFFS

Although 28 U.S.C. § 2283, prohibiting federal court injunctions of state court proceedings already in progress, would not bar or make inappropriate the granting of the declaratory relief here sought by plaintiffs,1 and assuming without deciding that it also would not bar the granting of the injunctive relief sought,2 the Court holds that plaintiffs'

281 F. Supp. 654
complaint fails to raise a substantial federal question with respect to any state statutes and, therefore, the convening of a three-judge court must be denied and the complaint dismissed

It is the function of this Court, in light of plaintiffs' demand for the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284, to determine whether a substantial constitutional question has been raised with respect to the state statutes under attack, whether the complaint sets forth any grounds for equitable relief, and whether the other requirements for a three-judge court are here met. Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962); Ex parte Poresky, 290 U.S. 30 (1933); Green v. Board of Elections, 259 F.Supp. 290, 292 (S.D.N.Y.1966), aff'd, 380 F.2d 445 (2 Cir. 1967). If the complaint fails to raise a substantial federal question with respect to a state statute, a three-judge court must be denied and the action dismissed. Swift & Co. v. Wickham, 382 U.S. 111,...

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6 practice notes
  • State v. Johnson
    • United States
    • Supreme Court of Connecticut
    • January 19, 1972
    ...and ingredients which separate it from all other crimes. State v. Setter, 57 Conn. 461, 470, 18 A. 782; see Johnson v. Lee, 281 F.Supp. 650, 655 (D.Conn.), for a similar view of § 54-197. Since conspiracy in Connecticut is itself a substantive crime, the holding of Berger v. New York, 388 U......
  • Raphael v. Hogan, No. 69 Civ. 1261.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 28, 1969
    ...of Dombrowski would merit the convening of a three-judge court to give further consideration to plaintiffs' complaint." Johnson v. Lee, 281 F.Supp. 650, 656 (D.C., 1968). Just as in that case, plaintiffs here "utterly fail to offer anything in the way of factual allegations or support." Dom......
  • Reilly v. Leonard, Civ. No. H-78-43.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • October 23, 1978
    ...611 (1973); Cicero v. Olgiati, 410 F.Supp. 1080 (S.D.N.Y.1976); Bergman v. Stein, 404 F.Supp. 287 (S.D.N.Y.1975); Johnson v. Lee, 281 F.Supp. 650, 656 The plaintiff next argues that the defendants' statements have denied him his rights to a fair trial, to present evidence in his own behalf,......
  • Shaw v. Garrison, Civ. A. No. 68-1063.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • December 9, 1968
    ...power to punish dangerous behavior, cannot be powerless against those who work to bring about that behavior." See also Johnson v. Lee, 281 F.Supp. 650, 655 (D.Conn., One of the plaintiff's contentions is that the word "crime" in the Louisiana conspiracy statute (a part of the Louisiana Crim......
  • Request a trial to view additional results
6 cases
  • State v. Johnson
    • United States
    • Supreme Court of Connecticut
    • January 19, 1972
    ...and ingredients which separate it from all other crimes. State v. Setter, 57 Conn. 461, 470, 18 A. 782; see Johnson v. Lee, 281 F.Supp. 650, 655 (D.Conn.), for a similar view of § 54-197. Since conspiracy in Connecticut is itself a substantive crime, the holding of Berger v. New York, 388 U......
  • Raphael v. Hogan, No. 69 Civ. 1261.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 28, 1969
    ...of Dombrowski would merit the convening of a three-judge court to give further consideration to plaintiffs' complaint." Johnson v. Lee, 281 F.Supp. 650, 656 (D.C., 1968). Just as in that case, plaintiffs here "utterly fail to offer anything in the way of factual allegations or support." Dom......
  • Reilly v. Leonard, Civ. No. H-78-43.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • October 23, 1978
    ...611 (1973); Cicero v. Olgiati, 410 F.Supp. 1080 (S.D.N.Y.1976); Bergman v. Stein, 404 F.Supp. 287 (S.D.N.Y.1975); Johnson v. Lee, 281 F.Supp. 650, 656 The plaintiff next argues that the defendants' statements have denied him his rights to a fair trial, to present evidence in his own behalf,......
  • Shaw v. Garrison, Civ. A. No. 68-1063.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • December 9, 1968
    ...power to punish dangerous behavior, cannot be powerless against those who work to bring about that behavior." See also Johnson v. Lee, 281 F.Supp. 650, 655 (D.Conn., One of the plaintiff's contentions is that the word "crime" in the Louisiana conspiracy statute (a part of the Louisiana Crim......
  • Request a trial to view additional results

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