Kavanagh v. Brown

• Court: U.S. District Court — Western District of Michigan
• Writing for the Court: CECIL, Circuit , and THORNTON and KAESS
• Citation: Kavanagh v. Brown, 206 F.Supp. 479 (W.D. Mich. 1962)
• Decision Date: 18 June 1962
• Docket Number: Civ. A. No. 21517.
• Parties: Thomas M. KAVANAGH and Eugene F. Black, Plaintiffs, v. Sanford A. BROWN, Treasurer of Michigan, Otis M. Smith, Auditor General of Michigan, and Ira Polley, Controller of the Michigan State Department of Administration, Defendants.

206 F. Supp. 479

Thomas M. KAVANAGH and Eugene F. Black, Plaintiffs, v. Sanford A. BROWN, Treasurer of Michigan, Otis M. Smith, Auditor General of Michigan, and Ira Polley, Controller of the Michigan State Department of Administration, Defendants.

Civ. A. No. 21517.

United States District Court E. D. Michigan, S. D.

June 18, 1962.

Thomas M. Kavanagh, Lansing, Mich., in pro. per.

Eugene F. Black, Port Huron, Mich., in pro. per.

Paul L. Adams, Atty. Gen., Frank J. Kelley, Atty. Gen., succeeding Paul L. Adams, Lansing, James R. Ramsey, Asst. Atty. Gen., Lansing, for defendants.

Before CECIL, Circuit Judge, and THORNTON and KAESS, District Judges.

THORNTON, District Judge.

A statutory three-judge court was convened pursuant to 28 U.S.C.A. § 2281. Jurisdiction is alleged to exist under 28 U.S.C.A. § 1331(a)¹. Plaintiffs are two of the eight Supreme Court justices of the State of Michigan. They assert rights which they claim are protected by the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. The three defendants are office holders (at the time of the commencement of this action) of the State of Michigan in the respective capacities set forth in the title of this action. They filed a motion to dismiss the action and also a motion to strike certain paragraphs of the complaint. This latter motion was heard by the Court and denied. Two weeks thereafter their motion to dismiss the action was heard simultaneously with the hearing on the merits. At said hearing plaintiffs moved to withdraw from their prayer for relief paragraphs 4 and 5, the gist of these being a request for a mandatory injunction ordering the defendant fiscal officers of Michigan to make salary payments according to certain set standards. The motion to withdraw paragraphs 4 and 5 was granted.

The motion to dismiss is based on an alleged lack of jurisdiction. In support of this, defendants set forth five grounds in their motion as follows:

"1. The District Court of the United States for the Eastern District of Michigan has no jurisdiction, as the complaint does not set forth a cause of action arising under the Constitution, laws or treaties of the United States as is requisite to jurisdiction under United States Code, Title 28, section 1331.

"2. The District Court of the United States for the Eastern District of Michigan has no jurisdiction or judicial power to entertain the action sought to be enforced by the complaint, because it is in essence a suit against the State of Michigan.

"3. The District Court of the United States for the Eastern District of Michigan has no power to issue the coercive writs of mandamus or mandatory injunction sought by the complaint filed herein.

"4. The District Court of the United States for the Eastern District of Michigan has no jurisdiction of the action sought to be enforced by the complaint, as the jurisdictional amount required under United States Code, Title 28, section 1331, is obtained by aggregating two claims not subject to aggregation.

"5. The District Court for the United States for the Eastern District of Michigan has no jurisdiction of the action sought to be enforced by the complaint as amended, since the matter now in controversy does not equal or exceed the jurisdictional amount of $10,000.00 required under United States Code, Title 28, Section 1331."

As to the first ground, it is difficult to comprehend what defendants have in mind in view of the fact that the complaint is bottomed squarely on an alleged violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. As to the second ground, if it were sound, it would have the effect of rendering ineffective 28 U.S.C.A. § 2281. That section provides for exactly such a procedure as we have here, under the same circumstances as are here present. The third ground is, we believe, moot because of plaintiffs' withdrawal of paragraphs 4 and 5 from their prayer for relief. The fourth and fifth grounds are obviously without merit, as the jurisdictional amount is clearly present as to each plaintiff. This is a matter of simple arithmetic. If there still be any doubt as to the jurisdiction of the Court to determine this case on the merits, such doubt must be completely resolved in favor of the existence of jurisdiction in the light of the opinion of the United States Supreme Court delivered March 26, 1962 in the case of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. This Court has jurisdiction to determine the instant controversy.

The prayer for relief, as it remains after the withdrawal of paragraphs 4 and 5, reads as follows:

"Plaintiffs deem themselves entitled to adjudicatory process and relief as follows:

"1. To a permanent injunction restraining the operation and execution of said Act 163 save only on a basis of strict equality of payment of salary to each and all of the member justices of the Michigan Supreme Court.

"2. To a judicial determination that the quoted provision of Article 16 of the Constitution of Michigan, and quoted section 2 of said Act 163, offend plaintiffs' right to equal protection of the laws and that both, as applied to plaintiffs, are invalid.

"3. To a judicial determination that section 2 of said Act 163 is severable from the remainder of the act and, when so severed, that the remainder of the act is valid and fully effective as of its legal date (August 17, 1960).

"6. To a declaratory decree determining that the uniformly sworn status and the uniform duties of all members of the Michigan Supreme Court is such as to require equal compensation to each at all times.

"7. To convocation, pursuant to section 2284 of Title 28, United States Code, of a three judge court; such court to hear and determine the issues presented by this complaint.

"8. To such other and further relief as may be agreeable to equity and good conscience."

The provision of Article 16 of the Constitution of Michigan which plaintiffs claim to be violative of the Equal Protection Clause is Section 3, and reads as follows:

"Neither the legislature nor any municipal authority shall grant or authorize extra compensation to any public officer, agent, employe or contractor after the service has been rendered or the contract entered into. Salaries of public officers, except circuit judges, shall not be increased, nor shall the salary of any public officer be decreased, after election or appointment."

The legislature of the State of Michigan by Act No. 163 of the Michigan Public Acts of 1960 effected a salary increase for justices of the Michigan Supreme Court. The Act provides that "Each justice of the supreme court shall receive an annual salary of $25,500.00, payable out of the moneys appropriated by the legislature", and also includes a proviso consistent with the Article 16 provision of the State Constitution. This proviso reads as follows: "Justices of the supreme court in office on the effective date of this amendatory act shall not receive any increase in annual salary until the expiration of their respective terms of office." We view the proviso as neither adding to nor subtracting from the prohibition contained in Article 16. If Article 16, § 3, is valid, then the proviso is valid; if not, the proviso falls. It has no independent status. The plaintiff justices are required to continue receiving their present salary of $18,500.00 for their respective terms of office. They will, however, be eligible to receive the higher salary of $25,500.00 upon the commencement of new terms of office. Justice Black's present term ends December 31, 1963, and that of Justice Kavanagh, December 31, 1965. It is the contention of plaintiff justices, that because certain members of the court entered the service of the Supreme Court subsequent to the effective date of Act No. 163 and as a result are receiving the increased salary, that the differential in salaries among the eight justices constitutes a discrimination which is repugnant to the Equal Protection Clause so as to render the offending Article 16, § 3, of the Michigan Constitution invalid. We are requested to so declare.

Our approach to this problem need not be complex nor many-faceted. There are no disputed factual issues, and the factual picture is simple. There are eight justices serving on the Supreme Court of the State of Michigan. They do not all receive the same or equal compensation. They are all required to render the same or equal services. Some of those who have served longer than others receive less compensation. They are therefore receiving unequal treatment. This is the result of three factors * * * Article 16, § 3, of the State Constitution, Act No. 163 of the Michigan Public Acts of 1960, and the commencement of new terms of office for certain justices subsequent to the effective date of Act No. 163. Plaintiffs have no quarrel with the second and third factors. Act No. 163 provides for an increase in salary. Plaintiffs do not object to this. The fact of the embarkation upon new terms of office for some of the justices is not objected to by plaintiffs. It is the first factor to which plaintiffs voice vigorous objection * * * Article 16, § 3. This is the stumbling block to their getting the benefit of the salary increase during their existing terms of office. This provision they contend denies them the equal protection of the laws as it is guaranteed to them by the Fourteenth Amendment. This contention is not a novel one. The Supreme Court of the United States has been called upon to determine, and has determined again and again, whether various types of state legislation(²) which work a discrimination are offensive to the constitutional safeguard. A recent such case is that of McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). The question there present concerned the validity of Maryland's Sunday Closing Laws. The language of the Supreme Court contained in Part I of its...