Pierre v. Jordan

• Decision Date: 05 August 1964
• Docket Number: No. 19012.,19012.
• Citation: 333 F.2d 951
• Parties: Helene P. PIERRE et al., Plaintiffs-Appellants, v. Frank M. JORDAN, Secretary of State of California, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

333 F.2d 951 (1964)

Helene P. PIERRE et al., Plaintiffs-Appellants, v. Frank M. JORDAN, Secretary of State of California, et al., Defendants-Appellees.

No. 19012.

United States Court of Appeals Ninth Circuit.

June 9, 1964.

Rehearing Denied August 5, 1964.

COPYRIGHT MATERIAL OMITTED

Helene P. Pierre, Los Angeles, Cal., in pro. per., for appellants.

Stanley Mosk, Atty. Gen. of California, Burton J. Gindler and A. Wallace Tashima, Deputy Attys. Gen. of California, Los Angeles, Cal., Harold W. Kennedy, County Counsel for Los Angeles County, Cal., Gordon W. Treharne, Deputy County Counsel for Los Angeles County, Cal., Los Angeles, Cal., for appellees.

Before BARNES, HAMLEY and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge:

This action was brought to obtain declaratory and injunctive relief which would forestall the formation and financing of Los Angeles County Waterworks District No. 37, located in Antelope Valley in the vicinity of Acton, California. The plaintiff, Helene P. Pierre, who appears throughout in propria persona, is a resident of Acton and owns property which would be within the proposed district and on which there is ground water which might be taken for district purposes. She brought the suit as a class action on behalf of herself and approximately three hundred other property owners similarly situated.

Named as defendants were three officials of the State of California,¹ twelve officials of Los Angeles County,² twenty-four individuals who were alleged to be engaged in the real estate business, or as promoters, or as both, and two real estate companies.

In her complaint Mrs. Pierre relied upon several provisions of the Civil Rights Act,³ the Declaratory Judgment Act,⁴ and the Three-Judge Court Act,⁵ as bases for district court jurisdiction.

After filing the complaint Mrs. Pierre applied for a temporary restraining order to enjoin one of the defendants, Benjamin S. Hite, Registrar of Voters, from holding a scheduled special election to vote on a proposed bond issue for District No. 37. At the same time she moved for the convening of a three-judge district court pursuant to 28 U.S.C. § 2281 et seq.

After a hearing the district court denied the application for a temporary restraining order. It was provided in the order of denial, however, that if the outcome of the election authorized the issuance of the bonds, the court would entertain a motion by plaintiff to restrain the issuance of the bonds until there had been a hearing on whether a three-judge court should be convened "* * * to test the constitutionality of California Government Code, Sec. 6066."

At the special election a majority voted in favor of issuance of the bonds. Mrs. Pierre then applied for a temporary restraining order to enjoin issuance of the bonds so authorized pending the convening of a three-judge district court. Before a hearing could be held on that application the defendant state and county officials moved to dismiss the action for failure to state a claim against them upon which relief can be granted, and for lack of jurisdiction "* * * because no substantial federal question is involved."

All of these motions came on for hearing at the same time and thereafter, on August 30, 1963, an order was entered dismissing the action for lack of jurisdiction over the subject matter. In the same order the temporary restraining order was vacated. Plaintiff's motion to convene a three-judge court was not specifically acted upon, but dismissal of the action constituted denial of that motion.

On September 10, 1963, Mrs. Pierre moved to vacate and set aside the order of dismissal, and to reinstate the action. In a supporting memorandum, she for the first time suggested, as an additional basis of district court jurisdiction, federal-question jurisdiction pursuant to 28 U.S.C. § 1331 (1958).⁶ Notice of these motions was served by being placed in the mail on September 12, 1963. On September 27, 1963, an order was entered denying the motion to vacate and set aside the order of dismissal, it being recited that the court did not have jurisdiction over either the parties or the subject matter.

On October 7, 1963, Mrs. Pierre filed a notice of appeal from the order of dismissal entered on August 30, 1963, and from the order entered on September 27, 1963 denying her motion to vacate and set aside the order of dismissal.

After the appeal had been argued and submitted in this court we raised the questions of whether the appeal from the order of August 30, 1963 should be dismissed on the ground that it is not timely, and whether the order of September 27, 1963, denying the motion to vacate and set aside the order of dismissal, should be affirmed on the ground that this motion was not timely. At our request the parties submitted supplemental briefs on these questions.

We consider first the questions raised on our own motion.

It is provided in Rule 73(a), Federal Rules of Civil Procedure, that the time within which an appeal may be taken shall be thirty days from the entry of the judgment appealed from, with exceptions not here material. The notice of appeal herein was not filed within thirty days from the entry of the order of August 30, 1963.

But Rule 73(a) further provides that the running of the time for appeal is terminated by a timely motion under Rule 50(b) for judgment notwithstanding the verdict, under Rule 52(b) to amend or make additional findings of fact, under Rule 59 to alter or amend the judgment, or under Rule 59 for a new trial. When the time for appeal is so terminated, the full time for appeal commences to run from the entry of an order granting or denying any of the first three kinds of motions; or from the entry of an order denying the fourth kind of motion.

Mrs. Pierre's motion to vacate and set aside the order of dismissal was, in effect, a motion under Rule 59 to alter or amend the judgment. Walker v. Bank of America, 9 Cir., 268 F.2d 16, 20. It was therefore the kind of motion which, under Rule 73(a), terminated the running of the time for appeal, providing the motion was "timely."

Rule 59(e) provides that a motion to alter or amend the judgment shall be served not later than ten days after entry of the judgment. Mrs. Pierre's motion to vacate and set aside the order of dismissal was not served until September 12, 1963, when it was mailed to counsel for defendants. As this was the thirteenth day after entry of the order of dismissal on August 30, 1963, the motion was not, strictly speaking, timely.

But the motion was treated in the district court as timely, and was dealt with on the merits. Defendants filed a memorandum in opposition to the motion, dealing with the merits and making no contention that the motion was untimely. The district court denied the motion, not because it was untimely, but because "* * * this Court does not have jurisdiction over either the parties or the subject matter. * * *"⁷ Had Mrs. Pierre, a layman, been made aware at the time her motion to vacate and set aside was denied, on September 27, 1963, that the motion was untimely, and therefore could not terminate the running of the time for appeal, as provided in Rule 73(a), she still would have had two days in which to file a timely notice of appeal from the order of August 30, 1963.

Under the stated facts we are of the view that Mrs. Pierre was entitled to conclude that the district court regarded the motion as timely, to be dealt with on the merits. This being the case, unique circumstances exist requiring that her motion be regarded as timely and as effectively terminating the running of the time for appeal. See Thompson v. Immigration & Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404. Since the notice of appeal was filed within thirty days after denial of the motion to vacate and set aside, it was timely both as to that order and as to the order of August 30, 1963.

Turning to the specifications of error, Mrs. Pierre first argues that the district court was without power to dismiss the action for lack of jurisdiction, because this was a matter which should have been passed upon by a three-judge district court convened under 28 U.S.C. § 2281 et seq. Under that statute a three-judge court is to be convened only where the constitutionality of a state statute is brought into question.⁸

In the complaint the constitutionality of two statutes of the State of California are questioned. One of these is California Water Code, § 55103, which provides that the petition for the formation of a county waterworks district shall be presented at a regular meeting of the board of supervisors "* * * and shall be signed by not less than 25 percent of the freeholders resident within the proposed district, or by not less than 25 percent of the freeholders resident and nonresident within the proposed district, including not less than 15 percent of such resident freeholders."

The other statute challenged in the complaint on constitutional grounds is California Water Code, § 55180, which provides that the board of supervisors shall, by ordinance or resolution, adopted at a regular or special meeting after having acquired jurisdiction to proceed in the formation of a district, provide for and order the holding of a special election in the proposed district. The purpose of such an election, according to this statute, is to submit to the qualified voters of the proposed district the proposition of forming the district and incurring a debt by the issuance of bonds of the district, if a bonded indebtedness is to be incurred.

In its order of July 29, 1963, denying the application for a temporary restraining order to enjoin the special election, the district court indicated that it would entertain a motion by Mrs. Pierre to restrain issuance of the bonds until there has been a hearing on whether a three-judge court should be convened to test the constitutionality of California Government Code § 6066. This is a general statute providing...