Romero v. Weakley, No. 1712-SD

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtArthur L. Lockie, Dist. Atty., El Centro, Cal., for defendant
Citation131 F. Supp. 818
PartiesJoe R. ROMERO et al., Plaintiffs, v. Guy WEAKLEY et al., Defendants. R. J. BURLEIGH et al., Plaintiffs, v. Guy WEAKLEY et al., Defendants.
Decision Date05 May 1955
Docket NumberNo. 1712-SD,1713-SD.

131 F. Supp. 818

Joe R. ROMERO et al., Plaintiffs,
v.
Guy WEAKLEY et al., Defendants.

R. J. BURLEIGH et al., Plaintiffs,
v.
Guy WEAKLEY et al., Defendants.

Nos. 1712-SD, 1713-SD.

United States District Court S. D. California, S. D.

May 5, 1955.


131 F. Supp. 819

Richard W. Petherbridge, El Centro, Cal., Charles B. Johnson, Pasadena, Cal., Franklin H. Williams, San Francisco, Cal., Byron F. Lindsley, San Diego, Cal., Loren Miller, Los Angeles, Cal., Ralph Estrada, Phoenix, Cal., and A. L. Wirin, Los Angeles, Ariz., for plaintiff.

Arthur L. Lockie, Dist. Atty., El Centro, Cal., for defendant.

HALL, District Judge.

By stipulation of the parties in open court these cases were consolidated. The Complaints are practically identical except that in No. 1712-SD the Complaint is brought on behalf of Mexican minors, and in No. 1713-SD the Complaint is brought on behalf of Negro minors. They are cast as class actions, each on behalf of several hundred allegedly similarly situated children.

The defendants are the Superintendent and the several members of the Board of Trustees of the El Centro School District and the Central Union

131 F. Supp. 820
High School District, and the County Superintendent of Schools of Imperial County (in which the City of El Centro is located), and the several members of the Board of Supervisors of the County of Imperial

A summary of the Complaint is set forth at length in Appendix I.

In brief, the allegations of the Complaints assert:

That the defendants and each of them, "as officers of the State of California, under color of regulations, custom, or usage," Par. XXI "acting with a common plan, design, and purpose, by aiding, abetting and advising and assisting each other in the El Centro School District, the Central Union High School District and in the establishment and authorization of boundaries of elementary school districts in the County of Imperial, have adopted, and do practice ethnic and racial discrimination and segregation by regulation, custom and usage, rules and regulations and orders, in the operation, management and control of their said systems and facilities," Par. VII which deprives plaintiffs of their "civil rights, privileges, and/or immunities;" and that "defendants' conduct * * * is illegal and is in violation of plaintiffs' rights and privileges as guaranteed by the Constitution of the United States, and in pursuance of their unlawful conduct to injure and oppress plaintiffs herein in the free exercise and enjoyment of their rights and privileges as secured and guaranteed to them as citizens of the United States by the Constitution of the United States, as particularly provided under the Fourteenth Amendment.1

In short, the Complaints claim that the children of plaintiffs, because of their racial characteristics as Mexicans or Negroes, respectively, are discriminated against in the matter of their right to attend unsegregated schools in El Centro. It is what is currently called a "segregation" case.

The Court of its own motion raised the question as to whether or not a three-judge court should be convened under Sections 2281-2284 of Title 28, United States Code Annotated, and on February 9, 1955, made an Order setting that question for hearing on February 17, 1955. Appendix II.

At the hearing it was specifically declared by counsel for plaintiffs that they were neither attacking any statute of the State of California, nor any order of any administrative board or commission acting under the State statutes, upon the ground of the unconstitutionality of any State statute. In fact, it was the express view of plaintiffs' counsel that the statutes of the State of California "enjoin discrimination because of race or because of ethnic consideration." The defendants admit that segregation is not permitted under California law. Appendix III. Accordingly, no request was made for the convening of a three-judge court. Appendix IV.

The defendant officials filed an answer denying the allegations of the Complaint insofar as there was asserted to be any discrimination or segregation, and at the same time filed a Motion to dismiss, or in the alternative, to stay the proceedings.

Before discussing the Motion to dismiss, it is necessary to dispose of the

131 F. Supp. 821
Motion of plaintiffs to amend the Complaint

At the time of the argument of the Motion to dismiss, which was after answer had been filed by the defendants, plaintiffs orally moved to amend their Complaint by adding to Paragraph (6) of the prayer thereof, the following language: "and for damages against each of the defendants in the sum of $5,000.00," so that Parargaph (6) of the prayer, as so proposed to be amended, would read: "and for such other and further relief as this Court may deem just and proper, and for costs of suit, and for damages against each of said defendants in the sum of $5,000.00."

The Complaint is not a complaint for damages. The theory of the action is to be determined by its main and material allegations. First National Bank of Colorado Springs v. McGuire, 7 Cir., 1950, 184 F.2d 620. It is stated in the body of the Complaint that the action is brought under Section 1343(3) of Title 28, United States Code Annotated. Appendix V. It sounds in equity. In each of the Complaints it is alleged that the plaintiffs have no plain, speedy or adequate remedy at law. There are no allegations of damage in any sum to any of the plaintiffs except that plaintiffs are "suffering great and irreparable damage." Subdivisions (1) and (2) of 28 U.S.C.A. § 1343 permit actions for damages. This action is brought under neither of those subdivisions, but as noted, is brought under subdivision (3) only.

The individual damage to each plaintiff would have to depend upon the facts and circumstances concerning each plaintiff. As noted, no such allegations are contained in the Complaint. The determination of the damages in a definite sum to each of the named plaintiffs would not determine the damage, if any, to any other member of the class not designated as a named plaintiff. The Complaint is filed as a class suit under Rule 23, Federal Rules of Civil Procedure, 28 U.S.C.A., and if it were a complaint for damages only, it would lose its character as a "class" suit. Matthews v. Rodgers, 284 U.S. 521, at page 530, 52 S.Ct. 217, 76 L.Ed. 447. Cf. Brown v. Board of Trustees of La Grange Ind. School Dist., 5 Cir., 187 F.2d 20 — and would pend only on behalf of those joined as plaintiffs under Rule 20, Federal Rules of Civil Procedure.

The Motion of the plaintiffs to amend the Complaint is denied.

I come now to a consideration of the Motion to dismiss, or in the alternative, to stay.

Jurisdiction is not dependent upon diversity or any other ground of Federal jurisdiction, except Section 1343(3) of Title 28, United States Code Annotated.

The formal grounds of the Motion to dismiss are set forth by text in Appendix VI.

Defendants concede that this Court has jurisdiction under the allegations of the Complaint by the provisions of Section 1343(3) of Title 28, United States Code Annotated. It is urged, however, inasmuch as this is an equity case, that — First: the Court, in the exercise of its discretion, should decline jurisdiction or stay the proceedings upon the grounds that decision of Federal Constitutional questions should be avoided except where absolutely necessary, which can and should be done in this case by requiring plaintiffs, under the rule of comity between the Federal courts and the several States, to pursue their remedy in the State Courts of California, which are open to them with remedies under State law and which are competent and decision by which is final on questions of purely local law involving the Statutes of California and the rules, regulations, ordinances and conduct of the defendant Boards, which must be applied and construed in this case before any Federal Constitutional question is reached; Second: that equitable considerations require the granting of the Motion in that it would be impossible to frame an effective decree without setting this Court up as a continuous and perpetual supervisor of the multitude of duties of the defendant

131 F. Supp. 822
local School Boards and other officials

Before discussing the first ground of defendants' Motion, it is advisable to consider the second, viz.: the impossibility of framing and enforcing an effective decree in equity without setting this Court up as a continuous and perpetual supervisory school board. In substance the contention is that zones and the establishment of boundary lines for schools, the establishment, maintenance, general conduct thereof, and permission to attend them are influenced by things which are constantly changing and are beyond the control of the defendants, and would be beyond the control of this Court, among which are the tendency of people of the same race to congregate in an area, constantly changing areas of population, the location of dead-end streets, highways, railroads, factories, and the like, and other things involving safety factors.2 While Giles v. Harris, 1903, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909 (the principles of which are affirmed but distinguished in Lane v. Wilson, 1939, 307 U.S. 268, 59 S.Ct. 872, 83 L. Ed. 1281), is authority for the proposition that a court of equity would be justified in a Fourteenth Amendment case in declining jurisdiction solely on such ground, it is not necessary to rest the decision herein on that ground alone, as the Motion to stay is disposed of on the first ground of the objection. The matters urged in that connection are to be taken into account in the consideration of the first ground of objection, to which I shall now turn.

At the outset it should be observed that this Court is aware that the "separate but equal" doctrine of Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S.Ct. 1138, 1144, 41 L.Ed. 256, no longer controls as to the public schools, but has been...

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4 practice notes
  • Simmons v. Whitaker, No. 16746.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 14, 1958
    ...only in the sense that they used excessive force in making the arrest effective * * *" 12 Romero v. Weakley, D.C., and companion cases, 131 F.Supp. 818. 13 Id., page 14 226 F.2d 399. 15 Collins v. Hardyman, 1951, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253. 16 Article 5, § 23 of the Texas Con......
  • Magraw v. Donovan, Civ. No. 2981.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • July 10, 1958
    ...U.S. 242, 244-245, 73 S.Ct. 600, 97 L.Ed. 983; Green v. Phillips Petroleum Co., 8 Cir., 119 F.2d 466; Romero v. Weakley, D.C.S.D.Cal., 131 F.Supp. 818, 832. "The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the inju......
  • Romero v. Weakley, No. 14807.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 10, 1955
    ...Chief Judge, and ORR and CHAMBERS, Circuit Judges. DENMAN, Chief Judge. The above appeals are from a decision of the district court, 131 F.Supp. 818, refusing to consider complaints in class actions brought, with one exception, in behalf of persons of Mexican or the Negro race. The exceptio......
  • Hedlund v. Hanson, No. 4-62-Civ.-122.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 3, 1962
    ...U.S. 242, 244-245, 73 S.Ct. 600, 97 L.Ed. 983; Green v. Phillips Petroleum Co., 8 Cir., 119 F.2d 466; Romero v. Weakley, D.C.S.D.Cal., 131 F.Supp. 818, Since the claimed malapportionment is not disputed, and in view of the intention of the defendants and the intervenor to seek pertinent new......
4 cases
  • Simmons v. Whitaker, No. 16746.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 14, 1958
    ...only in the sense that they used excessive force in making the arrest effective * * *" 12 Romero v. Weakley, D.C., and companion cases, 131 F.Supp. 818. 13 Id., page 14 226 F.2d 399. 15 Collins v. Hardyman, 1951, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253. 16 Article 5, § 23 of the Texas Con......
  • Magraw v. Donovan, Civ. No. 2981.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • July 10, 1958
    ...U.S. 242, 244-245, 73 S.Ct. 600, 97 L.Ed. 983; Green v. Phillips Petroleum Co., 8 Cir., 119 F.2d 466; Romero v. Weakley, D.C.S.D.Cal., 131 F.Supp. 818, 832. "The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the inju......
  • Romero v. Weakley, No. 14807.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 10, 1955
    ...Chief Judge, and ORR and CHAMBERS, Circuit Judges. DENMAN, Chief Judge. The above appeals are from a decision of the district court, 131 F.Supp. 818, refusing to consider complaints in class actions brought, with one exception, in behalf of persons of Mexican or the Negro race. The exceptio......
  • Hedlund v. Hanson, No. 4-62-Civ.-122.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 3, 1962
    ...U.S. 242, 244-245, 73 S.Ct. 600, 97 L.Ed. 983; Green v. Phillips Petroleum Co., 8 Cir., 119 F.2d 466; Romero v. Weakley, D.C.S.D.Cal., 131 F.Supp. 818, Since the claimed malapportionment is not disputed, and in view of the intention of the defendants and the intervenor to seek pertinent new......

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