Thoms v. Heffernan, No. 98

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: PER CURIAM
• Citation: 473 F.2d 478
• Docket Number: Docket 72-1013.,No. 98
• Decision Date: 08 January 1973
• Parties: William P. THOMS, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. Richard P. HEFFERNAN, Prosecuting Attorney of the Sixteenth Circuit Court of the State of Connecticut, Defendant-Appellant.

473 F.2d 478 (1973)

William P. THOMS, on behalf of himself and all others similarly situated, Plaintiff-Appellee,
v.
Richard P. HEFFERNAN, Prosecuting Attorney of the Sixteenth Circuit Court of the State of Connecticut, Defendant-Appellant.

No. 98, Docket 72-1013.

United States Court of Appeals, Second Circuit.

Argued October 19, 1972.

Decided January 8, 1973.

473 F.2d 479

John F. Mulcahey, Jr., New Haven, Conn., for defendant-appellant.

William R. Breetz, Jr., Hartford, Conn., for plaintiff-appellee.

Before MANSFIELD, OAKES and TIMBERS, Circuit Judges.

OAKES, Circuit Judge:

This appeal to a court of appeals from the judgment of a three-judge district court declaring a Connecticut flag misuse statute unconstitutional raises several difficult questions of appellate and trial court jurisdiction and procedure, as well as the more usual first amendment problems on the merits. The decision below is reported sub nom. Thoms v. Smith, 334 F.Supp. 1203 (D.Conn.1971).

I. APPELLATE JURISDICTION

The threshold question we have — one not argued by the parties in their briefs — relates to the jurisdiction of a court of appeals over an appeal from a three-judge court. Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S. Ct. 554, 9 L.Ed.2d 644 (1963); Borden Co. v. Liddy, 309 F.2d 871, 876 (8th Cir. 1962), cert. denied, 372 U.S. 953, 83 S. Ct. 951, 9 L.Ed.2d 977 (1963). The problem stated simply is whether an appeal lies to us when the three-judge court has declared the state statute unconstitutional but neither expressly granted nor denied the injunctive relief sought by the prevailing plaintiff. The problem is complicated to some extent by the fact that there apparently has been no separate judgment order signed below — rather there is a memorandum of decision signed by Chief District Judge Blumenfeld, concurred in by Circuit Judge Smith, from which District Judge Clarie dissented. Judge Blumenfeld's opinion says:

We have no reason to believe defendants will continue to enforce § 53-255 upon notice of this decision; accordingly, we forbear to enter an injunction restraining them from enforcing it. Declaratory judgment may, however, enter that Section 53-255 of the Connecticut General Statutes is unconstitutional and is hereby declared void because it makes criminal that which under the Constitution may not be made a crime.

473 F.2d 480

So ordered.

334 F.Supp. at 1211.

Since the plaintiff originally sought injunctive relief with jurisdiction being asserted under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), against the alleged unconstitutional "enforcement, operation or execution" of a state statute, the convening of a three-judge court was required by 28 U.S.C. § 2281. If we construe the operative language of the district court's opinion as "an order granting or denying . . . an interlocutory or permanent injunction" the appellant's appeal from the district court's decision must be directly to the Supreme Court and we would be without jurisdiction to hear it. 28 U.S.C. § 1253; Lee v. Roseberry, 200 F.2d 155 (6th Cir. 1952). If, however, we construe the district court's "forbearance" in granting injunctive relief as merely a postponement of decision and not a "granting or denial," appeal to us would be proper and indeed required since the district court's decision would, in effect, be a declaratory judgment on the constitutionality of the state statute.¹ See Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); see also Gunn v. University Committee to End the War in Vietnam, 399 U.S. 383, 391, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970) (White & Brennan, JJ., concurring).

The latter construction is consistent with the Supreme Court's admonition that its jurisdiction of appeals from three-judge courts is to be "narrowly construed," Goldstein v. Cox, 396 U.S. 471, 478, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970), since "any loose construction of the requirements of the predecessor of § 1253 authorizing direct Supreme Court review would defeat the purposes of Congress . . . to keep within narrow confines the Supreme Court's appellate docket." Phillips v. United States, 312 U.S. 246, 250, 61 S. Ct. 480, 483, 85 L.Ed. 800 (1941), quoted in Gunn v. University Committee to End the War, supra, 399 U.S. at 387, 90 S.Ct. 2013, and Goldstein v. Cox, supra, 396 U.S. at 478, 90 S.Ct. 671. This admonition, we think, requires us to resolve all reasonable doubts against direct appealability of a judgment to the Supreme Court.

This construction is also consistent with the obvious intent of the three-judge court in this case. The operative language of Chief Judge Blumenfeld's opinion leaves open the possibility that injunctive relief will be granted in the event that the district court was gazing

473 F.2d 481

into a clouded crystal ball in predicting non-enforcement of the statute by the appellant and the other defendants below. No other basis for the denial of injunctive relief appears in the opinion. Until the district court explicitly grants or denies an injunction "it is simply not possible to know with any certainty what the court has decided" and one of the "basic reasons" for the limitations § 1253 places on Supreme Court review is defeated. Gunn v. University Committee to End the War, supra, 399 U.S. at 388-390, 90 S.Ct. 2013. In the present state of the case no one knows if an injunction will ever be required, let alone against whom such an injunction might run. In such circumstances appeal lies directly to us as if only a declaratory judgment and not an injunction were sought in the first instance. Cf. Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 152-155, 83 S.Ct. 554; Flemming v. Nestor, 363 U.S. 603, 606-607, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). In this respect, this case is unlike Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), where direct appeal to the Supreme Court lay, even though the three-judge court dismissed for lack of subject matter jurisdiction, because there the three-judge court entered a judgment "denying all relief sought by plaintiffs." 405 U.S. at 541, n. 5, 92 S.Ct. at 1116

This case is also unlike Abele v. Markle, 342 F.Supp. 800 (D.Conn.1972) (three-judge court), where the court of appeals, as Judge Timbers' dissent points out, remanded for reconsideration by the district court of the question whether to grant injunctive relief. Abele v. Markle, Docket No. MR-5241 (2d Cir., May 9, 1972). In Abele the two-member majority of the district court were opposed on the issue of granting injunctive relief, compare 342 F.Supp. at 804-805 (Lumbard, C. J.) with id. at 812 (Newman, J.); here the majority were agreed that they should forbear. We do not think the action of the majority below was an attempt to "determine the court to which it sent its appellate business," in the language of the dissent. Rather, we assume that action to have been motivated by regard for comity, avoiding the direct confrontation between federal court and state prosecutorial authority that issuance of an injunction would effect by the more abstract (if equally effective) procedural step of issuing a judgment only declaring the statute unconstitutional. That this has the incidental effect of determining which appellate court has jurisdiction is an anomaly of the three-judge court statutes, note 1 supra, over which we have no control.

II. FINALITY

Theoretically more proceedings are possible in the district court should appellant and the other defendants below seek to enforce the statute. See note 1 supra. Thus, it might be argued that the district court's declaration is not "a final judgment" in this case and that we are accordingly without jurisdiction to hear this appeal under 28 U.S.C. § 1291. Of course, if this were an action instituted solely for declaratory relief the district court's decision on that relief would be final and appealable. 28 U.S. C. § 2201. The fact that further proceedings leading to an injunction are possible below does not render the judgment of the district court in this case any less final.

The declaration of unconstitutionality of the statute by the district court resolves the critical issue in this litigation. There will be no further proceedings in the district court should its ruling on the constitutionality of the statute be overturned on appeal; there likely will be none should its ruling be upheld. As this case comes to us, the question of constitutionality is the controlling question. See Mills v. Alabama, 384 U.S. 214, 217-218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); Local 438, Construction Laborers' Union v. Curry, 371 U.S. 542, 550-551, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963) (alternate holding); Pope v. Atlantic Coast Line Railroad Co., 345 U.S. 379, 382, 73 S.Ct. 749, 97 L.Ed. 1094

473 F.2d 482

(1953). See generally C. Wright, Law of Federal Courts 457 (2d ed. 1970). Moreover, our determination of the correctness of the district court decision is "fundamental to the further conduct of the case." United States v. General Motors Corp., 323 U.S. 373, 377, 65 S.Ct. 357, 359, 89 L.Ed. 311 (1945). See also Gillespie v. United States Steel Corp., 379 U.S. 148, 153-154, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). It would be anomalous to treat the order here as a declaratory judgment for purposes of deciding the proper court to which an appeal should be taken and then decide we have no jurisdiction to hear the appeal on the central issue in the case because the judgment lacks "finality."

The practical considerations which the Supreme Court has considered important in determining issues of finality point to a holding that the district court's order is final. Extra expense to all parties would ensue were we to remand for future proceedings in the district court. Gillespie v. United States Steel Corp., supra, 379 U.S. at 153, 85 S.Ct. 308. But even more important, there would be incalculable delay in determining the constitutionality of this statute. This...