SUPERX DRUGS CORPORATION v. Michigan Board of Pharmacy
| Decision Date | 22 September 1964 |
| Docket Number | Civ. A. No. 4712. |
| Citation | 233 F. Supp. 705 |
| Parties | SUPERX DRUGS CORPORATION, a Michigan corporation, Plaintiff, v. The MICHIGAN BOARD OF PHARMACY and Paul C. Coussen, Francis G. Putvin, Frank E. Reilly, Bert C. Brennan and Richard J. Wilson, Members of the Michigan Board of Pharmacy, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
McGraw, Allen, Haass & Selander, Detroit, Mich., James C. Allen, Detroit, Mich., of counsel, Arnold, Fortas & Porter, Washington, D. C., for plaintiff.
Frank J. Kelley, Atty. Gen., by Joseph B. Bilitzke, Asst. Atty. Gen., Lansing, Mich., for defendants.
The facts of this case and the course which it has followed through the various legal channels of this State present a confused state of affairs, and one with potential consequences of lasting importance.
The following is not a complete statement of the facts, but it is adequate to set the stage for an interim determination of the motions presently before this Court.
In mid-1962, the Kroger Company, a multi-state chain grocery store operation, purchased the Owl Drug Company, a Battle Creek pharmacy, and under that name applied to the defendant Board of Pharmacy for a renewal of its license. In September 1962, the name of the company was changed to Superx Drugs Corporation. Since October 16, 1962, it has been operating by leave of a restraining order of the Michigan Supreme Court prohibiting interference with its operation pending the outcome of this case.
Michigan Statutes Annotated, § 14.771, Comp.Laws 1948, § 338.4811 provides that no partnership or corporation shall own a drug store in which less than 25% of all stock is held by registered pharmacists. There is an exception in favor of drug stores owned by corporations at the time of the enactment of this statute. Plaintiff rests its position on this existing corporate ownership, the so-called "grandfather clause."
Presuming the grant of a renewal license in Battle Creek, plaintiff established three other stores at separate sites in the State of Michigan, and presuming further, planned to seek licenses for these pharmacies on the strength of its Battle Creek license.
From the facts of this case and the nature of plaintiff's operations, it is not improbable that this Battle Creek license would serve as the foundation for a pattern of chain drug stores in Kroger's grocery stores throughout the State of Michigan.
At the hearing held on September 26, 1962, by the Board of Pharmacy, the request for a license was denied. Because the hearing was held before some nine hundred pharmacists presumably adversely disposed to plaintiff's application, and because of the manner in which the proceedings were conducted, plaintiff on the very next day, September 27, petitioned the Michigan Supreme Court for a writ of mandamus to compel issuance of the license.
In applying to the original jurisdiction of that court, plaintiff, with full knowledge of the eight-man composition of the Michigan Supreme Court, and the possibility that it might divide equally over a proposition, chose to neglect the customary procedures for appealing the decision of an administrative board. However, the Supreme Court accepted the case, and in a 5-3 decision entered on December 5, 1963, ordered that the writ be granted and that the license be issued.
The most cursory glance at that decision reveals the profound division of opinion surrounding the case. The three dissenting Justices emphasized the opinion that the Court should not have accepted the case, but should have sent it back to be decided by "orderly due process of administrative law." 372 Mich. 22, 125 N.W.2d 13, at 23. Two of the concurring Justices joined only in the result, expressing misgivings over the procedural way in which the case was handled. 372 Mich. 22, 125 N.W.2d at 23, 32.
Defendants filed a timely motion for rehearing, and on February 3, 1964, the motion for rehearing was denied as a result of a 4-4 vote of the eight Justices of the Michigan Supreme Court.
This did not mark the end of the matter, however, for the Clerk of the Supreme Court subsequently received written messages from both divisions of the Court on the effect of that vote.
One stated that the result was that the writ of mandamus should not issue as a consequence of the 4-4 deadlock, the other directing that the writ should issue. The official entry shows merely that the motion for rehearing was denied.
In any event, no formal writ has ever issued, and plaintiff is now before this Court with the claim that the 5-3 decision of December 1963 is res judicata, and because of defendant Board's continued refusal to issue the license, plaintiff is being denied its constitutional guarantees of equal protection of the laws and due process.
Plaintiff now seeks a preliminary injunction and summary judgment from this Court, while defendants move to dismiss.
The beacon to which the court is drawn by this vortex of uncertainty is the 4-4 tie on the motion for rehearing and the effect which this has on the 5-3 decision granting the writ in December of 1963.
While it is true that under General Court Rules of 1963 (M.S.A. § 714.5) a writ of mandamus is contained in the order of judgment, a timely motion for rehearing was filed, which stayed the operation of the writ. The hearing on that motion resulted in a 4-4 vote and the consequences of that vote are unsettled.
M.S.A. § 27A.230, Pub.Acts 1961, No. 236 provides that when the Justices of the Supreme Court are equally divided on the ultimate decision of any case properly before the Court on review, the judgment of the court below shall be affirmed. The principle underlying this statute is that in such cases the tie-breaking vote is that of the trial judge in the court below.
The question, therefore, is whether or not an equally divided Supreme Court affirms its own judgment, rendered in an exercise of its original jurisdiction, when there is no Circuit Judge to break the tie.
In the hiatus between the December decision and the February vote, the Chief Justice of the Michigan Supreme Court was replaced by a new Justice, a new Chief Justice was designated, and a new State Constitution came into effect which altered the language of the old Constitution designating individual writs to language which provided simply for "perogative and remedial writs." Mich.Const. of 1963, Art. VI, Sec. 4.
That the face of the Court changed visibly is evidenced by the fact of the 4-4 vote on the motion for rehearing. While it was technically a vote on a motion for rehearing, the facts show that the Michigan Supreme Court in effect changed its vote, for a rehearing or denial of it depends upon the existence of facts or law sufficient to support the original judgment.
Under these circumstances, four Justices of the Supreme Court indicated that the original judgment should not stand, four held that it did. From an examination of the record, therefore, it is apparent that at least four Justices of the Michigan Supreme Court are convinced that the first decision is not res judicata.
In this unique situation, can it be definitely said that the December 1963 decision is res judicata? If so, plaintiff argues, its constitutional basis for a summary judgment in this suit stands. But if it is not res judicata, there is no foundation for plaintiff's argument, and it is reasonably possible that this Court will have to hear the case de novo to determine whether equal protection of the law has been denied either by the action of the Board or the Supreme Court.
Under these circumstances, it is prudential jurisprudence to have the Supreme Court of the forum state clarify the relevant issues. When a Federal District Court is presented with a claimed breach of a constitutionally protected right, which may spring from the action or inaction of a State Supreme Court in a given case, it is sound jurisprudence for the Federal Court to forebear so as to give the highest Court of the forum state a reasonable opportunity to write the law of the State which is to be applicable if controlling on the issue before the Federal Court.
At this point I wish to remark that the case of Lewis v. City of Grand Rapids, et al., 222 F.Supp. 349, cited extensively in plaintiff's brief, contains many important factual distinctions.
A final point which further highlights the uncertainty of this case for this Court is an apparent conflict between the Michigan General Court Rules and the decision of December 1963.
While their scope has not been expanded, the perogative writs have been absorbed into the new order of superintending control, which permits a broader exercise of powers. Preliminary Committee Comment to Extraordinary Writs Rules, M.S.A., General Court Rules, P. 267.
The scope of this power is demonstrated by the following quote from the Committee Comment to Rule 711.1, General Court Rules:
Furthermore, the New Hampshire Supreme Court, acting under language empowering a writ of superintending control over "courts of inferior jurisdiction," exercised the power over a board which was exercising...
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