Spencer v. Kugler

• Citation: 454 F.2d 839
• Decision Date: 24 January 1972
• Docket Number: 19258 and 71-1876.,No. 19257,19257
• Parties: Vivian SPENCER, an infant by her Guardian ad Litem, Nancy Spencer, Appellant in No. 19257, and Geraldine Chavis, an infant by her Guardian ad Litem, Vance Dunlop Chavis, Appellants in No. 71-1876, v. George F. KUGLER, Attorney General of New Jersey; Carl Marburger, Commissioner of Education and the State Board of Education of the State of New Jersey (two cases). Appeal of Geraldine CHAVIS, an infant by her Guardian ad Litem, Vance Dunlop Chavis, No. 19258.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

454 F.2d 839 (1972)

Vivian SPENCER, an infant by her Guardian ad Litem, Nancy Spencer, Appellant in No. 19257, and Geraldine Chavis, an infant by her Guardian ad Litem, Vance Dunlop Chavis, Appellants in No. 71-1876, v. George F. KUGLER, Attorney General of New Jersey; Carl Marburger, Commissioner of Education and the State Board of Education of the State of New Jersey (two cases).

Appeal of Geraldine CHAVIS, an infant by her Guardian ad Litem, Vance Dunlop Chavis, No. 19258.

Nos. 19257, 19258 and 71-1876.

United States Court of Appeals, Third Circuit.

Argued December 9, 1971.

Decided January 24, 1972.

Harold J. Ruvoldt, Jr., Ruvoldt & Ruvoldt, Jersey City, N. J., for appellants.

Stephen G. Weiss, Greenwood & Weiss, Wayne, N. J. (George F. Kugler, Jr., Atty. Gen. of N. J., on the brief), for appellees.

Before McLAUGHLIN, ALDISERT and JAMES ROSEN, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal¹ presents the narrow question whether a single district judge properly dismissed a count in a complaint requesting, inter alia, that New Jersey file a public school plan free of "racial imbalance." After a three-judge statutory court, 326 F.Supp. 1235, dismissed a second count in the same complaint, which requested the same relief but also sought an injunction against the enforcement of certain statutes and a judicial declaration of their unconstitutionality, the single judge incorporated the reasoning of the statutory court in dismissing Count One.

Plaintiffs' complaint alleged that the New Jersey public schools are racially imbalanced, thus constituting de jure segregation outlawed by Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The ultimate relief sought was immediate statewide redistricting. The procedural vehicles utilized by the plaintiffs have given rise to this appeal.

Although somewhat inartfully drawn, Count One contends generally that the school system is racially imbalanced and prays that the defendants be ordered "to file with this Court a plan (a) to correct the racial imbalance of the schools in the state of New Jersey at the start of the semester immediately after the entry of judgment therein, and (b) to provide compulsory education . . . and/or to provide funds for such purposes." Count Two, a request for a convocation of a three-judge court, avers that the imbalance results from N.J.S.A. 18A:8-1 to 8-42 and N.J.S.A. 18A:38-1 to 38-24,² seeks a judgment declaring their unconstitutionality, requests an injunction against enforcement, and essentially asks for the same affirmative mandatory relief sought in Count One.

Count Two is not before us. At oral argument appellants explicitly stated that these appeals relate only to the denial of relief sought from the single judge in Count One. A three-judge court denied the relief requested in Count Two and appellants have lodged a direct appeal from that determination to the Supreme Court. 28 U.S.C. § 1253.³

Basically, the argument advanced on this appeal is that this court has jurisdiction to entertain an appeal from the decision of the single judge because the relief requested was for a declaratory judgment, and not an injunction, and that according to Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), this court, and not the Supreme Court, has jurisdictional to hear an appeal from a denial of a request for a declaratory judgment. But the issue here is not appealability; indeed, that point is not in controversy. Instead, the more difficult question presented is whether the single district judge properly dismissed Count One for the reasons stated by the statutory court in dismissing Count Two and incorporated by him as the justification for his action.

So postured, appellants' argument creates the critical threshold problem of denominating Count One of the complaint. Appellants' appellations notwithstanding, four possibilities inhere in the rather vaguely-couched language of Count One:⁴ (1) as a request for particular mandatory relief, it may simply be an equitable prayer which, despite its evanescent constitutional overtones, does not rise to constitutional dimension; (2) it may be viewed, as appellants urge, as a request for a declaratory judgment based on alleged impairment of federal constitutional rights; (3) it may be deemed to seek an injunction against the enforcement of New Jersey educational districting statutes, on the ground that these statutes contravene plaintiffs' constitutional rights; (4) it may be a combination of any of these three procedural vehicles.

I.

Accepting arguendo appellants' contention that Count One amounts to a request for a declaratory judgment, we cannot agree with the conclusion that Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), mandates that the claim be resolved by a single district court judge.⁵ Perez involved a local obscenity ordinance in which a three-judge court "recognized that `it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance,' but the court nevertheless seized the `opportunity to express its views on the constitutionality of the ordinance.'" Perez, supra, 401 U.S. at 85, 91 S.Ct. at 677. All Perez concluded was that "there is considerable question concerning the propriety of issuing a declaratory judgment against a criminal law in the circumstances of this case." Id., at 85-86, 91 S.Ct. at 677. Indeed, in Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), decided the same day as Perez, the Court held that, at least as to federal intervention in pending state criminal proceedings, considerations underlying the grant or denial of declaratory judgments are the same as those on which the issuance vel non of an injunction is based.⁶ See Scott v. Hill, 449 F. 2d 634, 641 (6th Cir. 1971).

Prior to Samuels, the distinctions between an injunction and a declaratory judgment had been well-delineated:

A request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute. We hold that a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.

Zwickler v. Koota, 389 U.S. 241, 254, 88 S.Ct. 391, 399, 19 L.Ed.2d 444 (1967).⁷

The extent to which Samuels modifies Zwickler is not yet clear. We conclude that at the least, conceptualizing the distinction between injunctive and declarative relief is in a dynamic, developmental process; and that at the most, the majority pronouncement of the Supreme Court in Samuels suggests that where the relief sought by declaratory judgment will require a subsequent injunction to "protect or effectuate" that judgment, there is, in reality, no practical reason to differentiate between the injunctive and declaratory remedies because the practical effects of the two remedies are identical—the disruption of the enforcement by a state of its statutes. In the view we take of this case, however, we need not attempt to resolve this issue.

In this court appellants have explicitly impressed an injunctive label on the relief sought. Their notice of appeal states that the appeal to this court is from the "whole of the order . . . whereby plaintiffs' Motion for Summary Judgment was denied and the Order to Show Cause previously granted, was discharged pursuant to 28 U.S.C. § 1292(a) (1) since both the Order to Show Cause and the Motion for Summary Judgment sought affirmative injunction relief albeit-eo-nomine."

Moreover, in this appeal from the single judge order, appellants have specifically requested from this court immediate and affirmative, coercive and emergency, extraordinary relief against the New Jersey state officials. On September 14, 1970, appellants presented a petition in which they described the relief sought in Count One as that "in the nature of, albeit not denominated, affirmative injunctive relief" and that this cause be set down for "an immediate hearing so as to afford the petitioner to stop the harm to which they are being subjected, which is irrepairable sic . . . ." On April 7, 1971, they again moved this court "to grant an emergency hearing and to issue a preliminary injunction pending this appeal, directing the defendants herein to draw a desegregation redistricting plan for the State of New Jersey."

Faced with the plain language of Count One and appellants' repeated denomination of their own proceeding, we conclude that the relief requested was injunctive in nature. Of course, the affirmative injunctive relief sought in Count One, unlike the precise prayer in Count Two, may be considered a § 1983 action alleging unconstitutional application by state officials of otherwise constitutional statutes; so construed, the count may not arise to a constitutional assault on the statutes in question sufficient to activate § 2281. As the Supreme Court noted in Phillips v. United States, 312 U.S. 246, 252, 61 S.Ct. 480, 484, 85 L. Ed. 800 (1941):

Some constitutional or statutory provision is the ultimate source of all actions by state officials. But an attack on lawless exercise of authority in a particular case is not an attack upon the constitutionality of a statute conferring the authority even though a misreading of the statute is invoked as a justification. At least not within the Congressional scheme of § 2281.⁸

In such cases, these claims are properly viewed as pendent to the claims challenging unconstitutionality of statutes and, as such, they may be resolved by the single-judge district court. Rosado v. Wyman, 397 U.S. 397, 402-405, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Bryant v. Carleson, 444 F.2d 353, 358 (9th Cir. 1971). In Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S.Ct....