Roudebush v. Hartke Sendak v. Hartke 8212 66, 70 8212 67

• Decision Date: 23 February 1972
• Docket Number: Nos. 70,s. 70
• Citation: 405 U.S. 15,92 S.Ct. 804,31 L.Ed.2d 1
• Parties: Richard L. ROUDEBUSH, Appellant, v. R. Vance HARTKE et al. Theodore L. SENDAK, Attorney General of Indiana, Apellant, v. R. Vance HARTKE et al. —66, 70—67
• Court: U.S. Supreme Court

405 U.S. 15

92 S.Ct. 804

31 L.Ed.2d 1

Richard L. ROUDEBUSH, Appellant,

v R. Vance HARTKE et al.

Theodore L. SENDAK, Attorney General of

Indiana, Apellant,

v. R. Vance HARTKE et al.

Nos. 70—66, 70—67.

Argued Dec. 13, 1971.

Decided Feb. 23, 1972.

Syllabus

Incumbent Senator Hartke was certified by the Indiana Secretary of State to the Governor as the winner of the close 1970 Indiana senatorial election. Candidate Roudebush filed a timely recount petition in state court. The state court denied Hartke's motion to dismiss on the grounds of conflict with the Indiana and Federal Constitutions, and granted the petition for a recount. Hartke sought an injunction against the recount in United States District Court, invoking jurisdiction under 28 U.S.C. § 1343(3) and claiming that the recount was barred by Art. I, § 5, of the Federal Constitution, delegating to the Senate the power to judge the elections, returns, and qualifications of its members. The three-judge District Court issued the requested injunction. After appeals were filed here, the Senate seated Hartke 'without prejudice to the outcome of an appeal pending in the Supreme Court . . . and without prejudice to the outcome of any recount that the Supreme Court might order.' Hartke then moved to dismiss the appeals as moot. Held:

1. The issue here, whether a recount is a valid exercise of the State's power to prescribe the times, places, and manner of holding elections, pursuant to Art. I, § 4, of the Constitution, or is a forbidden infringement on the Senate's power under Art. I, § 5, is not moot, as the Senate has postponed making a final determination of who is entitled to the office of Senator pending the outcome of this action. Pp. 18—19.

2. The District Court was not barred from issuing an injunction by 28 U.S.C. § 2283, which generally prohibits a federal court from enjoining state court proceedings. Pp. 20—23.

(a) That section does not restrict a federal court from enjoining a state court acting in a nonjudicial capacity. P. 21.

(b) The state court's recount functions are nonjudicial, as they consist merely of determining that the recount petition is correct as to form and appointing recount commissioners. Pp. 21 22.

(c) The complaint did not seek to enjoin the action of the state court but rather to enjoin the recount commission from proceeding after the court had appointed members of the commission. P. 22.

3. Article I, § 5, does not prohibit a recount of the ballots by Indiana, as the recount will not prevent an independent Senate evaluation of the election any more than the original count did, and it would be mere speculation to assume that Indiana's procedure would impair the Senate's ability to make an independent final judgment. Pp. 23—26.

321 F.Supp. 1370, reversed.

Donald A. Schabel, Indianapolis, Ind., for appellant Richard L. Roudebush.

Richard C. Johnson, Indianapolis, Inc., for appellant Theodore L. Sendak.

John J. Dillon, Indianapolis, Inc., for appellees.

Mr. Justice STEWART delivered the opinion of the Court.

The 1970 election for the office of United States Senator was the closest in Indiana history. The incumbent, Senator R. Vance Hartke (Hartke), was declared the winner by a plurality of 4,383 votes—a margin of approximately one vote per state precinct. On November 16, 1970, 13 days after the election, the Indiana Secretary of State certified to the Governor that Hartke had been re-elected. On the following day, candidate Richard L. Roudebush (Roudebush) filed in the Superior Court of Marion County a timely petition for a recount. ¹ Hartke moved in that court to dismiss the petition, arguing that the state recount procedure conflicted with the Indiana and Federal Constitutions. On December 1, the state court denied the motion to dismiss and granted the petition for a recount. It appointed a three-man recount commission and directed it to begin its task on December 8.

Hartke then filed a complaint in the United States District Court for the Southern District of Indiana asking for an injunction against the recount. He invoked federal jurisdiction under 28 U.S.C. § 1343(3)² and claimed that the recount was prohibited by Art. I, § 5, of the Constitution of the United States, which delegates to the Senate the power to judge the elections, returns, and qualifications of its members.³ A single district judge issued an order temporarily restraining the recount pending decision by a three-judge district court. The Attorney General of Indiana then moved successfully to intervene as a defendant, and a three-judge court was convened pursuant to 28 U.S.C. § 2284. After taking testimony and hearing argument, the court ruled in Hartke's favor and issued an interlocutory injunction, 321 F.Supp. 1370, one judge dissenting. Roudebush and the Attorney General both brought direct appeals to this Court.⁴

On January 21, 1971, shortly after the jurisdictional statements were filed, the Senate administered the oath of office to Hartke, who had been issued a certificate of election by the Governor Hartke was seated, however, 'without prejudice to the outcome of an appeal pending in the Supreme Court of the United States, and without prejudice to the outcome of any recount that the Supreme Court might order . . ..'⁵ Following the Senate's decision to seat him, Hartke moved to dismiss the appeals as moot. We consolidated both appeals and postponed further consideration of questions of jurisdiction to the hearing of the cause on the merits. 401 U.S. 972, 91 S.Ct. 1201, 28 L.Ed.2d 321.

I

We consider first the claim that these appeals are moot. This claim is based upon the proposition, as stated in the appellee Hartke's brief, that the 'basic issue' before the Court is 'whether appellee Hartke or appellant Roudebush is entitled to the office of United States Senator from Indiana.' Since the Senate has now seated Hartke, and since this Court is without power to alter the Sen- ate's judgment,⁶ it follows, the argument goes, that the case is moot.

The difficulty with this argument is that it is based on an erroneous statement of the 'basic issue.' Which candidate is entitled to be seated in the Senate is, to be sure, a nonjusticiable political question—a question that would not have been the business of this Court even before the Senate acted. ⁷ The actual question before us, however, is a different one. It is whether an Indiana recount of the votes in the 1970 election is a valid exercise of the State's power, under Art. I, § 4, to prescribe the times, places, and manner of holding elections,⁸ or is a forbidden infringement upon the Senate's power under Art. I, § 5.

That question is not moot, because the Senate has postponed making a final determination of who is entitled to the office of Senator, pending the outcome of this lawsuit. Once this case is resolved and the Senate is assured that it has received the final Indiana tally, the Senate will be free to make an unconditional and final judgment under Art. I, § 5. Until that judgment is made, this controversy remains alive, and we are obliged to consider it.⁹

II

It is the position of the appellants that, quite apart from the merits of the controversy, the three-judge District Court was barred from issuing an injunction by reason of 28 U.S.C. § 2283, which prohibits a federal court from enjoining state court proceedings except in a few specific instances.¹⁰ This argument has weight, of course, only if the Indiana statutory recount procedure is a 'proceeding in a State court' within the meaning of § 2283. This Court has said of a predecessor to § 2283,¹¹ 'The provision expresses on its face the duty of 'hands off' by the federal courts in the use of the injunction to stay litigation in a state court.'¹² More recently, we characterized the statute as designed to assure 'the maintenance of state judicial systems for the decision of legal controversives.'¹³

We have in the past recognized that not every state court function involves 'litigation' or 'legal controversies.' In the case of Prentis v. Atlantic Coast Line R. Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150, the Court reviewed a federal injunction preventing a state commission from fixing passenger rail rates. The Court assumed that the commission had the powers of a state court and that the predecessor of § 2283 governed any attempt by a federal court to enjoin the exercise of the commission's judicial powers. Nevertheless, the Court concluded that rate-making could be enjoined because it was legislative in nature. Hence, the Court held that § 2283 does not restrict a federal court from enjoining a state court when it is involved in a nonjudicial function.

To determine whether an Indiana court engages in a judicial function in connection with an election recount, we turn to the law of that State.¹⁴ In Indiana every candidate has a right to a recount and can obtain one by merely filing a timely petition in the circuit or superior court of the appropriate county. If the petition is correct as to form, the state court 'shall . . . grant such petition . . . and order the recount . . .' When it grants a petition, the court is required to appoint three commissioners to carry out the recount. Once these appointments are made, the Indiana court has no other responsibilities or powers.¹⁵

The exercise of these limited responsibilities does not constitute a court proceeding under § 2283 within the test of Prentis: 'A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end.' 211 U.S., at 226, 29 S.Ct., at 69. The state courts' duties in connection with a recount may be characterized as ministerial, or perhaps administrative, but they clearly do not fall within this definition of a 'judicial inquiry.' The process of determining that the recount petition is correct as to form—that it contains the proper information, such as the...