Langford v. Barlow
| Decision Date | 22 September 1969 |
| Docket Number | Civ. A. No. 68-172. |
| Citation | 304 F. Supp. 657 |
| Parties | Barry W. LANGFORD et al., Plaintiffs, v. James E. BARLOW, District Attorney of Bexar County, Texas, et al., Defendants. |
| Court | U.S. District Court — Western District of Texas |
Woody & Rosen, Houston, Tex., for plaintiffs.
Lonny Zwiener, Asst. Atty. Gen. of Texas, Austin, Tex., for defendants.
Subsequent to the lodging of the appeal from the order of August 9, 1968 declining to certify the case to the Chief Judge for the constitution of a three-Judge Court, an appeal was lodged with the United States Court of Appeals for the Fifth Circuit, 304 F.2d 628, lodged as No. 26770, Barry W. Langford et al., appellants v. Barlow et al., appellees, the submission of the appeal having been postponed from time to time pending the determination of then known three-Judge cases raising similar issues in the District Courts of Texas. Subsequently, Chief Judge Adrian A. Spears, Western District of Texas, submitted his request of August 6, 1969 (copies of which went to counsel and parties) attached hereto as Exhibit 1, requesting that in view of the decision of the Chief Judge in Jackson v. Department of Public Welfare of the State of Florida, S.D.Fla., 1968, 296 F.Supp. 1341; City of Gainesville, Georgia v. Southern Railway Company, N.D.Ga., 1969, 296 F.Supp. 763; Smith v. Ladner, S.D.Miss., 1966, 260 F.Supp. 918; and the Court of Appeals in Jackson v. Choate, 5 Cir., 1968, 404 F.2d 910, that a three-Judge Court be constituted in this case. To this intervening factor Chief Judge Spears also emphasized the possible conflict in holdings between Stein v. Batchelor, three-Judge, N.D.Tex., 1969, 300 F.Supp. 602 and the decision of the Western District in Fontaine v. Dial, W.D.Tex., 1969, 303 F.Supp. 436.
As the Court of Appeals for the Fifth Circuit (Judges Thornberry, Morgan and Carswell) has simultaneously with the execution of this order, entered an order vacating the prior judgment in No. 26770 and remanding the case for further consistent proceedings, and this procedure will assure that everyone's rights are carefully preserved, I deem it appropriate to constitute a three-Judge Court for the trial and hearing of the above cause and therefore I, John R. Brown, Chief Judge of the Fifth Circuit hereby designate the Honorable Homer Thornberry, Circuit Judge and the Honorable Darwin Suttle, District Judge to serve with Chief Judge Adrian Spears as members of, and with him to constitute the said Court to hear and determine the action.
This designation and composition of a three-Judge Court is not a prejudgment, express or implied, as to whether this is properly a case for a three-Judge rather than a one-Judge court. This is a matter best determined by the three-Judge Court as this enables a simultaneous appeal to the Court of Appeals and to the Supreme Court without the delay, awkwardness, and administrative insufficiency of a proceeding by way of mandamus from either the Court of Appeals, the Supreme Court, or both, directed against the Chief Judge of the Circuit, the presiding District Judge, or both. The parties will be afforded the opportunity to brief and argue all such questions before the three-Judge panel either preliminarily or on the trial of the merits, or otherwise, as that Court thinks appropriate. See Jackson v. Choate, 5 Cir., 1968, 404 F.2d 910; Jackson v. Department of Public Welfare of the State of Florida, S.D.Fla., 1968, 296 F.Supp. 1341; City of Gainesville, Georgia v. Southern Railway Company, N.D.Ga., 1969, 296 F.Supp. 763; Smith v. Ladner, S.D.Miss., 1966, 260 F.Supp. 918; Hargrave v. McKinney, M.D.Fla., 1969, 302 F.Supp. 1381.
CHAMBERS OF WESTERN DISTRICT OF TEXAS ADRIAN A. SPEARS P. O. BOX 798 CHIEF JUDGE SAN ANTONIO, TEXAS 78206 August 6, 1969 Honorable John R. Brown Chief Judge United States Court of Appeals for the Fifth Circuit United States Courthouse Houston, Texas Re: Civil Action No. 68-172-SA Langford v. Barlow ------------------
Dear Chief Judge Brown:
In the above cause, I entered a judgment on August 9, 1968, in which I denied a request for the designation of a three-judge court.
An appeal was taken and the case was docketed in the Court of Appeals as No. 26,770, where it is still pending.
In view of the subsequent decision in Jackson v. Choate, 404 F.2d 910 (5th Cir. 1968), I consider it is my duty to inform you with reference to the foregoing, so that if you feel a three-judge court should have been designated, pursuant to the guidelines set forth in Choate, the matter can be remanded to this court for further proceedings. In this connection, it is my...
To continue reading
Request your trial