Romero v. Weakley, No. 14807.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: DENMAN, , and ORR and CHAMBERS, Circuit
• Citation: 226 F.2d 399
• Parties: Joe R. ROMERO, father and next of friend of Eleanor Flora Romero, et al., Appellants, v. Guy WEAKLEY, Superintendent of El Centro School District and Central Union High School District, et al., Appellees. R. J. BURLEIGH, father and next of friend of Jontille Burleigh, et al., Appellants, v. Guy WEAKLEY, Superintendent of El Centro School District and Central Union High School District, et al., Appellees.
• Decision Date: 10 October 1955
• Docket Number: No. 14807.

226 F.2d 399 (1955)

Joe R. ROMERO, father and next of friend of Eleanor Flora Romero, et al., Appellants,
v.
Guy WEAKLEY, Superintendent of El Centro School District and Central Union High School District, et al., Appellees.
R. J. BURLEIGH, father and next of friend of Jontille Burleigh, et al., Appellants,
v.
Guy WEAKLEY, Superintendent of El Centro School District and Central Union High School District, et al., Appellees.

No. 14807.

United States Court of Appeals Ninth Circuit.

October 10, 1955.

226 F.2d 400

Wirin, Rissman & Okrand, Los Angeles, Cal., Ralph C. Estrada, Tucson, Ariz., Richard W. Petherbridge, El Centro, Cal., Byron F. Lindsley, San Diego, Cal., for appellants.

Arthur L. Lockie, Dist. Atty., County of Imperial, El Centro, Cal., Franklin D. McDaniel, Rigmor C. Barker, Deputys Dist. Atty., El Centro, for appellees.

Before DENMAN, 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 exception is the complaint of Charles W. Ervin, a white person, claiming his white child was segregated from a school wrongly limited to Negro and Mexican descended children, and compelled to attend a more distant school of white children.

All allege a segregation in public school facilities on the basis of race or color and seek relief under 8 U.S.C.A. § 43 (now 42 U.S.C.A. § 1983), commonly known as the Civil Rights Act, 28 U.S.C. § 1343(3) and the Fourteenth Amendment, which all the parties agree give the Federal District Court jurisdiction to entertain the action.

All the parties also are agreed that the decisions to refuse to consider the complaints are appealable. Apart from the agreement we hold these are appealable decisions.¹

All the parties further agree that no issue of law exists in California as to the violation of the Constitution in segregating children in the public schools on the basis of race or foreign descent, the laws of California prohibiting it, being in agreement with that of the United States, as held in Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 755, succeeding its prior decision in 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, that such segregation is unconstitutional and "All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle."

One of the obvious purposes of the creation of right to litigate these civil rights in a federal court is to enable a member of a minority group claiming race or color discrimination to choose either a court presided over by a federal judge appointed by the President of the United States or a state court, presided over by an elected judge.

Here it is the Superior Court of Imperial County elected by the majority of its voters² where in this equitable case the facts involved may be submitted to a jury of such voters to find and advise upon the issue of the discrimination³

226 F.2d 401

alleged to have been committed by school boards elected by the voters of the county's several school districts and by the elected County Board of Supervisors in the fixing of the boundaries of the school district. The appellants well could have concluded that there was a greater assurance of a just consideration of their complaints in the District Court of the United States than in the Superior Court of Imperial County. As stated in Willcox v. Consolidated Gas Co. of New York, 212 U.S. 19, 29 S.Ct. 192, 195, 53 L.Ed. 382

"When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction * * *. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied."

In refusing to consider the appellants' complaints, the district court considers the case from a viewpoint...