Kish v. Wright, No. 14749

CourtUtah Supreme Court
Writing for the CourtELLETT
Citation562 P.2d 625
Decision Date30 March 1977
Docket NumberNo. 14749
PartiesAndrew G. KISH, Plaintiff and Appellant, v. Ernest D. WRIGHT et al., Defendants and Respondents.

Page 625

562 P.2d 625
Andrew G. KISH, Plaintiff and Appellant,
v.
Ernest D. WRIGHT et al., Defendants and Respondents.
No. 14749.
Supreme Court of Utah.
March 30, 1977.

Page 626

James T. Massey of Salt Lake County Bar Legal Services, Salt Lake City, for plaintiff and appellant.

Vernon B. Romney, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for defendants and respondents.

ELLETT, Chief Justice:

Appellant filed a civil rights action in the state district court under 42 U.S.C., Sec. 1983, against the Utah Division of Corrections for alleged denial of appellant's rights at the Utah State Prison. This appeal is now before this Court from an order of the trial court granting respondent's motion to dismiss with prejudice on the ground that the court does not have jurisdiction over a federal civil rights action brought under 42 U.S.C., Sec. 1983; or, in the alternative, that the trial court has discretionary power to refuse jurisdiction of an action brought under this federal statute.

The first ground on which the motion was based--that jurisdiction is not properly vested in the state courts is without merit. 42 U.S.C., Sec. 1983, states as follows:

Every person who, under color of any statute, ordinance, regulations, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The accompanying jurisdictional statute, 28 U.S.C., Sec. 1343, states:

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: . . ..

(3) to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by

Page 627

any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; . . .. (Emphasis added.)

It seems obvious that the federal statute gives original, but not exclusive jurisdiction to the federal district courts; therefore, it should be concluded that there exists concurrent jurisdiction under the federal statute. This position is supported by the view expressed by the United States Supreme Court that federal jurisdiction is not made exclusive merely because the controversy involves a right under the federal Constitution or under the laws of the United States. 1

In Dowd Box v. Courtney, 2 the United States Supreme Court further stated:

The general question, whether State courts can exercise concurrent jurisdiction with the Federal courts in cases arising under the Constitution, laws and treaties of the United States, has been elaborately discussed, both on the bench and in published treatises . . . (and) the result of these discussions has, in our judgment, been . . . to affirm the jurisdiction, where it is not excluded by express provision, . . ..

Other courts have repeatedly interpreted the federal civil rights statute to give concurrent jurisdiction to state courts. 3

Retention of subject-matter jurisdiction in civil rights matters by state courts is consistent with the Constitution of Utah, 4 which gives its citizens the 'inherent and inalienable' right to petition a state tribunal for redress of grievances in civil actions.

We hold, therefore, that civil rights actions arising under Sec. 1983 of the United States Code can be properly brought within the jurisdiction of this state.

The second ground of the trial court's motion which is here challenged by appellant is whether or not the court has discretionary power to refuse to invoke jurisdiction. In this issue we must consider whether or not the state courts have a duty to accept subject-matter jurisdiction when concurrent jurisdiction exists with the federal courts under Sec. 1983.

The doctrine of forum non-conveniens has been held applicable in both federal and state courts wherein jurisdiction can be denied and has been held applicable in federal courts even where...

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18 practice notes
  • Chambers v. Merrell-Dow Pharmaceuticals, Inc., MERRELL-DOW
    • United States
    • United States State Supreme Court of Ohio
    • 10 February 1988
    ...v. Missouri Pac. RR. Co. (Tex.Civ.App.1960); 341 S.W.2d 464, and Flaiz v. Moore (Tex.1962), 359 S.W.2d 872; Kish v. Wright (Utah 1977), 562 P.2d 625; Burrington v. Ashland Oil Co. (1976), 134 Vt. 211, 356 A.2d 506; and Werner v. Werner (1974), 84 Wash.2d 360, 526 P.2d 370. Two states have i......
  • Dow Chemical Co. v. Castro Alfaro, No. C-7743
    • United States
    • Supreme Court of Texas
    • 28 March 1990
    ...Corp. v. Bankers Trust Co., 273 S.C. 663, 259 S.E.2d 110 (1979); Zurick v. Inman, 221 Tenn. 393, 426 S.W.2d 767 (1968); Kish v. Wright, 562 P.2d 625 (Utah 1977); Burrington v. Ashland Oil Co., 134 Vt. 211, 356 A.2d 506 (1976); Werner v. Werner, 84 Wash.2d 360, 526 P.2d 370 (1974); WIS.STAT.......
  • Mountain States Tel. & Tel. Co. v. Boise Redevelopment Agency, No. 12676
    • United States
    • United States State Supreme Court of Idaho
    • 13 March 1980
    ...v. Pitchess, 13 Cal.3d 518, 119 Cal.Rptr. 204, 531 P.2d 772 (1975); Allen v. Craig, 1 Kan.App.2d 301, 564 P.2d 552 (1977); Kish v. Wright, 562 P.2d 625 (Utah 1977). See also Lockridge v. Amalgamated Ass'n of Street Elec. Ry. & Motor Coach Employees, 84 Idaho 201, 369 P.2d 1006 (1962) (juris......
  • Mitchem v. Melton, No. 15136
    • United States
    • Supreme Court of West Virginia
    • 12 May 1981
    ...§ 1983 actions may be pursued in our state courts. See, Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977); Kish v. Wright, Utah, 562 P.2d 625 (1977); Colvin v. Bowen, Ind.App., 399 N.E.2d 835 Page 898 (1980); Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 373 N.E.2d 1128 (197......
  • Request a trial to view additional results
18 cases
  • Chambers v. Merrell-Dow Pharmaceuticals, Inc., MERRELL-DOW
    • United States
    • United States State Supreme Court of Ohio
    • 10 February 1988
    ...v. Missouri Pac. RR. Co. (Tex.Civ.App.1960); 341 S.W.2d 464, and Flaiz v. Moore (Tex.1962), 359 S.W.2d 872; Kish v. Wright (Utah 1977), 562 P.2d 625; Burrington v. Ashland Oil Co. (1976), 134 Vt. 211, 356 A.2d 506; and Werner v. Werner (1974), 84 Wash.2d 360, 526 P.2d 370. Two states have i......
  • Dow Chemical Co. v. Castro Alfaro, No. C-7743
    • United States
    • Supreme Court of Texas
    • 28 March 1990
    ...Corp. v. Bankers Trust Co., 273 S.C. 663, 259 S.E.2d 110 (1979); Zurick v. Inman, 221 Tenn. 393, 426 S.W.2d 767 (1968); Kish v. Wright, 562 P.2d 625 (Utah 1977); Burrington v. Ashland Oil Co., 134 Vt. 211, 356 A.2d 506 (1976); Werner v. Werner, 84 Wash.2d 360, 526 P.2d 370 (1974); WIS.STAT.......
  • Mountain States Tel. & Tel. Co. v. Boise Redevelopment Agency, No. 12676
    • United States
    • United States State Supreme Court of Idaho
    • 13 March 1980
    ...v. Pitchess, 13 Cal.3d 518, 119 Cal.Rptr. 204, 531 P.2d 772 (1975); Allen v. Craig, 1 Kan.App.2d 301, 564 P.2d 552 (1977); Kish v. Wright, 562 P.2d 625 (Utah 1977). See also Lockridge v. Amalgamated Ass'n of Street Elec. Ry. & Motor Coach Employees, 84 Idaho 201, 369 P.2d 1006 (1962) (juris......
  • Mitchem v. Melton, No. 15136
    • United States
    • Supreme Court of West Virginia
    • 12 May 1981
    ...§ 1983 actions may be pursued in our state courts. See, Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977); Kish v. Wright, Utah, 562 P.2d 625 (1977); Colvin v. Bowen, Ind.App., 399 N.E.2d 835 Page 898 (1980); Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 373 N.E.2d 1128 (197......
  • Request a trial to view additional results

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