Krauss v. Sacramento Inn

• Decision Date: 15 June 1970
• Docket Number: Civ. No. S-1170.
• Citation: 314 F. Supp. 171
• Parties: Mary K. KRAUSS, Plaintiff, v. SACRAMENTO INN, a California corporation, El Dorado Inn, a California corporation, Carl Greer Inn, a California corporation, Caravan Inn, a California corporation, State of California, Department of Alcoholic Beverage Control, Edward J. Kirby, Director of the Alcoholic Beverage Control of the State of California, Doe I through Doe XIV and Doe Company, Defendants.
• Court: U.S. District Court — Eastern District of California

314 F. Supp. 171

Mary K. KRAUSS, Plaintiff, v. SACRAMENTO INN, a California corporation, El Dorado Inn, a California corporation, Carl Greer Inn, a California corporation, Caravan Inn, a California corporation, State of California, Department of Alcoholic Beverage Control, Edward J. Kirby, Director of the Alcoholic Beverage Control of the State of California, Doe I through Doe XIV and Doe Company, Defendants.

Civ. No. S-1170.

United States District Court, E. D. California.

June 15, 1970.

COPYRIGHT MATERIAL OMITTED

Kenneth B. Cayocca, Sacramento, Cal., for plaintiff.

Mitchell, Silberberg & Knupp, Los Angeles, Cal., Rubenstein & Hawkins, Thomas C. Lynch, Atty. Gen., for the State of California, San Francisco, Cal., McGregor, Bullen & McKone, Jones, Lamb, Jarboe & Boli, Sacramento, Cal., for defendants.

David W. Zugschwerdt, Equal Employment Opportunity Commission, Washington, D. C., amicus curiae.

MEMORANDUM AND ORDER

MacBRIDE, Chief Judge.

Plaintiff brings this action for damages and an injunction to restrain enforcement of Section 25656 of the California Alcoholic Beverage Control Act (Cal. Business and Professions Code § 25656 (West 1969)). That section makes it a misdemeanor to employ a female bartender unless she is the owner or licensee of the premises or the wife of the owner or licensee. The section is alleged to be void as inconsistent with the 1964 Civil Rights Act's general prohibition of discrimination in employment on the basis of sex. See 42 U.S.C. A. § 2000e-2(a) (1) & (e) (1970). Defendants move to dismiss on grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The motions present two issues: (1) whether a three-judge court must hear this case under 28 U.S.C. § 2281, and (2) whether this state statute is a valid exercise of power granted to the states by the Twenty-first Amendment even though inconsistent with the 1964 Civil Rights Act.¹

I conclude that this is not a proper case for a three-judge court under 28 U.S.C. § 2281. Plaintiff does not contend that the state statute in question is invalid under any specific constitutional provision such as the Fourteenth Amendment. Compare e. g., Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948). She claims only that the statute is inconsistent with an act of Congress. This case falls squarely within the holding of Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), that suits to enjoin the enforcement of state laws solely on the ground that they conflict with or are pre-empted by federal statutes and thus violate the Supremacy Clause, are not within the purview of § 2281. Defendants seek to distinguish this case from Swift on the ground that the Twenty-first Amendment is involved in this case in addition to the Supremacy Clause.² This distinction cannot withstand analysis. Section 2281 requires a three-judge court for every case in which a state statute is sought to be enjoined "upon the ground of the unconstitutionality of such statute * * *" The plaintiff does not contend that the statute is unconstitutional under the Twenty-first Amendment, and she does not seek to enjoin it for any infirmity other than inconsistency with the federal statute. It is the defendants who seek to uphold the statute under the Twenty-first Amendment. Defendants seek in effect a declaratory judgment that the statute is a proper exercise of state power under the Amendment. A finding against the defendants on this issue will not automatically require the issuance of an injunction against the statute because such a finding will not mean that the statute is inconsistent with the Amendment, only that the statute is not specifically sanctioned by it. Actions for declaratory judgments that statutes are unconstitutional are not proper three-judge court actions unless they also seek injunctive relief. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 152-155, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Smith v. State Executive Committee of Democratic Party of Georgia, 288 F.Supp. 371, 374 (N.D.Ga. 1968); Brotherhood of Loc. Firemen & Enginemen v. Chicago, B. & Q. R. Co., 225 F.Supp. 11, 21 (D.D.C.1964), aff'd, 118 U.S.App.D.C. 100, 331 F.2d 1020 (1964), cert. denied, 377 U.S. 918, 84 S. Ct. 1181, 12 L.Ed.2d 187. This claim in the nature of declaratory relief is to find the statute constitutional. The decision of this claim by one judge would be less contrary to the statutory purpose than the cases cited above. The three-judge court statutes were passed to prevent a single judge from paralyzing state regulatory schemes by injunctive order. Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 154, 83 S.Ct. 554. The decision on the Twenty-first Amendment claim in this case will not by itself have any adverse effect on the statute. If I decide the statute is sanctioned by the Amendment, it will stand. If I decide the statute is not sanctioned by the Amendment, the statute will stand unless I also decide that it conflicts with a valid federal statute. Therefore, decision of this case by a single judge will not contravene either the language or the purpose of § 2281. I hold that while this case involves a question of constitutional law in addition to the Supremacy Clause, it does not come within the purview of § 2281, and it may be heard by one judge.

Plaintiff brought her action under the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-5(f) (1970). Plaintiff has alleged sufficient facts regarding her exhaustion of administrative remedies before the Equal Employment Opportunity Commission to bring her within the section, and the defendants do not contest the court's jurisdiction under the Civil Rights Act.

I turn now to the really difficult question in this case — the applicability of the Twenty-first Amendment. The question is precisely this: does this statute regulating employment of bartenders fall within the ambit of the Twenty-first Amendment thus immunizing the statute from federal interference. If it does, the complaint fails to state a claim, and the complaint must be dismissed. I have concluded that the state statute does fall within those exclusive powers granted to the states by the Amendment and that it cannot be invalidated by the 1964 Civil Rights Act.

Section 2 of the Twenty-first Amendment reads as follows:

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

This amendment fundamentally changed the constitutional relationship between state and national authority in the control of traffic in intoxicating liquor. United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 300, 65 S.Ct. 661, 89 L.Ed. 951 (1945) (Justice Frankfurter concurring). Before passage of the Amendment the power of the states to control the liquor traffic was subordinated to the federal Commerce Clause. After its passage the interests protected by the Commerce Clause were subordinated to the power of the states to control traffic in liquor within their borders. United States v. Frankfort Distilleries, Inc., supra at 300, 65 S.Ct. 293 (concurring opinion). The dispute in this case is over the extent to which the Amendment grants the states control over the liquor industry within their borders. The statute in question seeks to regulate an incident of the retail sale of liquor; namely, the sex of the person mixing and selling it. The defendants assert that this regulation falls within the power granted to states by the Amendment. Plaintiff and the Equal Employment Opportunity Commission, as amicus curiae, insist that it is too far removed from the transportation and importation into the state to be covered by the Amendment.

While the language of the Amendment itself appears to support plaintiff's position, the Supreme Court has always recognized the power of a state under the Amendment to prohibit or regulate the distribution and sale of liquor within its borders.³ In State Board of Equalization of California v. Young's Market Co., 299 U.S. 59, 57 S. Ct. 77, 81 L.Ed. 38 (1936), the first important case to arise under the Amendment, the Court construed it to "confer upon the state the power to forbid all importations which do not comply with the conditions it prescribes." 299 U.S. at 62, 57 S.Ct. at 78. The Court suggested in dictum that the state's regulatory power could extend to the retail sale, such as by exacting high license fees for the privilege of selling at retail. 299 U.S. at 63, 57 S.Ct. 77. In Ziffrin Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128 (1939), the Court upheld a long and comprehensive Kentucky statute designed to rigidly regulate the production and distribution of alcoholic beverages. Manufacture, transportation, sale and possession were permitted only under carefully prescribed conditions and subject to the state's constant control. Every phase of the traffic was declared illegal unless specifically allowed. The Court upheld the legislative scheme against a variety of constitutional challenges.

The Twenty-first Amendment sanctions the right of a state to legislate concerning intoxicating liquors brought from without, unfettered by the Commerce Clause. Without doubt a state may absolutely prohibit the manufacture of intoxicants, their transportation, sale, or possession, irrespective of when or where produced or obtained, or the use to which they are to be put. Further, she may adopt measures reasonably appropriate to effectuate these inhibitions and exercise full police authority in respect of them Citations.

Having power absolutely to prohibit manufacture, sale, transportation, or possession of intoxicants, was it permissible for Kentucky to permit these things only under definitely prescribed conditions? Former opinions here make an affirmative answer imperative. The greater power includes the less * * * The state may

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