Lazarus v. Faircloth

Decision Date09 June 1969
Docket NumberNo. 68-1249-Civ.,68-1249-Civ.
Citation301 F. Supp. 266
PartiesMatthew B. LAZARUS, Plaintiff, v. Earl FAIRCLOTH, Attorney General of the State of Florida, Paul Denham, Acting Chief of Police of the City of Miami, Florida, and William Porter, Prosecuting Attorney, City of Miami Municipal Court, Defendants.
CourtU.S. District Court — Southern District of Florida

Elizabeth J. duFresne, Bruce S. Rogow and Alfred Feinberg, Economic Opportunity Legal Services Program, Inc., Phillip Hubbart, Metropolitan Dade County, Miami, Fla., for plaintiff.

Earl Faircloth, Atty. Gen., Edward D. Cowart and Jesse J. McCrary, Jr., Asst. Attys. Gen., Alan H. Rothstein, City Atty., and Charles K. Allan, Asst. City Atty., Miami, Fla., for defendants.

Before DYER, Circuit Judge, and ATKINS and CABOT, District Judges.

SUMMARY FINAL JUDGMENT

CABOT, District Judge:

Matthew Lazarus is a frequent winter visitor to Miami. While here he is "without reasonably continuous employment," and also tends to "misspend what he earns," at least in part. And, like the millions of other winter visitors here to enjoy our winter clime, he spends a good deal of his free time (that time when he is without reasonably continuous employment) merely "wandering and strolling about without lawful purpose or object." However, unlike those other tourists, his vacationlike attitude has resulted, on five occasions, in his arrest and trial for violation of the state and city vagrancy laws. Because of this treatment, he has brought this action requesting a declaration that the vagrancy statute, Fla. Statute § 856.02 F.S.A., is constitutionally invalid, and seeking an injunction restraining the defendants and their agents from enforcing it.

This court has jurisdiction of this cause on the basis of both the Federal Question Statute, 28 U.S.C. § 1331, and the Civil Rights Statute, 28 U.S.C. § 1343.

The defendants have challenged the jurisdiction of this three-judge court by their motion to dismiss. They further suggest utilization of the abstention doctrine, relying on Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), and Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Dismissal is also urged on the plaintiff's alleged lack of standing. Plaintiff has filed a motion for summary judgment, contending that there are no factual issues and that the sole question is the constitutionality of Fla. Statute § 856.02, F.S.A. After oral argument, we allowed the parties additional time to file further memoranda.

The two principal points in this case are the jurisdiction of this three-judge court and the constitutional question, both of which are purely legal issues, there being no substantial issues of material fact. They will be discussed separately.

As for the other questions raised by defendants' motion to dismiss, the cases defendants rely on in urging abstention, Dombrowski and Zwickler, compel us to the opposite conclusion, i.e., it would be error to abstain and we decline to do so. And, with reference to the question of the standing of the plaintiff to challenge the statute, defendant Faircloth's memorandum of January 2, 1969, (adopted by the other defendants), at page 3, states that "the complaint fails to allege that there is any present threat of any violations to the plaintiff." Two months later, on March 7, 1969, and again on March 11, 1969, this issue was resolved by two City of Miami policemen when they arrested plaintiff for vagrancy, under the authority of the statute here under attack. There have been no further arrests, presumably because of the temporary restraining order entered by District Judge Cabot on March 11, 1969, which is still in force. Thus, the plaintiff has standing to raise the issues presented here.

JURISDICTION

The threshold issue for our consideration is raised by defendant's motion to dismiss, which challenges the propriety of a three-judge court. The three-judge court statute, 28 U.S.C. § 2281, provides in pertinent part:

An interlocutory or permanent injunction restraining the enforcement * * * of any State statute by restraining the action of any officer of such State in the enforcement * * * of such statute * * * shall not be granted by any district court or judge thereof upon the ground of unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.

Thus, by its terms, § 2281 requires:

1. A state statute alleged to be violative of the Constitution; and

2. A request for relief in the form of an injunction restraining a "state officer" from enforcement of the challenged statute.

Defendants' attack finds both points lacking. We disagree and, for the reasons stated below, find that this is a proper three-judge court case.

Here, there is no question but that the primary thrust of plaintiff's attack is on Fla. Statute § 856.02, F.S.A. Paragraph 1 of the amended complaint (lines 7-12) reveals that plaintiff seeks to restrain defendants from enforcing the state vagrancy statute. Furthermore, paragraphs (c), (d), and (e) of the ad damnum clause pray for an injunction to restrain enforcement of the state statute. Defendants raise the problem, however, that plaintiff has also challenged a municipal ordinance, § 38-50 of the Code of the City of Miami, which provides that:

It shall be unlawful to commit within the City any act which is recognized by the law of the State as a misdemeanor as set out in the Florida Statutes. * * *

The answers to interrogatories of the defendant Porter, as well as the brief filed by the City of Miami's attorney on behalf of defendants Denham and Porter, treat § 38-50 not as incorporating by reference Fla. Statute § 856.02, F.S. A., but rather as authorizing city law enforcement officials to enforce the state statute as such. Whether the city ordinance incorporates or authorizes is an academic question which this court finds unnecessary to resolve, since the docket sheets reflecting plaintiff's arrests and conviction clearly reveal that he was charged (and, in some instances, convicted) under Fla. Statute § 856.02, F.S.A. as well as the city ordinance. As the plaintiff's supplementary memorandum on jurisdiction adequately shows, municipal police officers have the authority to arrest for violations of Fla. Statute § 856.02, F.S.A.1

Whether the state statute should have been enforced by the municipal officials is irrelevant; it was. In a recent case, where a junior college professor was attacking a state imposed loyalty oath, which he was erroneously required to execute, the court said:

Whether Article 6252-7 applies to * * * the teacher as written is of no concern to us. We look only to the effect of the action of state officers applying a state statute under 28 U.S.C. § 2281. An allegation that the effect is violative of the Constitution confers jurisdiction upon a three judge court. Gilmore v. James, 274 F.Supp. 75, 83 (N.D.Tex.1967), aff'd 389 U.S. 572, 88 S.Ct. 695, 19 L.Ed.2d 783 (Case No. 1, 1968).

The first prerequisite to empaneling a three-judge court is present here, since a state statute alleged to be violative of the United States Constitution is challenged.

The second requirement alleged to be missing here is the proper "state officer." The relief requested is an injunction restraining enforcement. The parties are Paul Denham, the Acting Police Chief of the City of Miami, William Porter, the Prosecuting Attorney in the City of Miami Municipal Court, and Earl Faircloth, Attorney General of the State of Florida. Not made a party is Richard Gerstein, State's Attorney for the Eleventh Judicial Circuit, which includes the City of Miami. This nonjoinder is the basis of defendants' contentions that § 2281 is not applicable.

A § 2281 three-judge court is unnecessary where an action seeks to enjoin a local officer when in the performance of duties relevant primarily to his locality.2 However, the fact that a defendant is a local officer is not controlling. We must look beyond the title of the local officer and consider the function he is performing in the legislative scheme assailed by the suit.3

An official though localized by his geographic activities and the mode of his selection may, when he enforces a statute which "embodies a policy of statewide concern," be performing a state function within the meaning of the predecessor to § 2281. Emphasis supplied. Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 811, 83 L.Ed. 1242 (1939).4

Browder5 is analogous to the situation here. There the attack was on state statutes and municipal ordinances which required segregation by race on the city bus lines. Among the defendants were the bus drivers, who were municipal employees, the city chief of police, and the city recorder (who functioned in criminal cases as a justice of the peace). The court found that the bus drivers had the authority to and did enforce the state imposed segregation. Therefore, when they were so engaged, they were clearly officers of the state, notwithstanding their localized employment. Likewise, the chief of police had the authority to arrest for violations of the statutes and the city recorder presumably had the authority to try those charged with violating the statutes. There, as here, the city officials admitted that they were enforcing the state statutes. Thus, the court concluded that all were "state officers," insofar as the applicability of § 2281 was concerned, and the three-judge court was properly empaneled.

Here, both the defendant Porter, the prosecutor, and the municipal police, under the direction of the defendant Denham, are performing a state function in enforcement of Fla. Statute § 856.02, F.S.A., a statute which "embodies a policy of statewide concern." As such, they are state officers for the purposes of § 2281.

Even in the absence of these local officials, the defendants' arguments would fall, since the defendant Faircloth,...

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