Turner v. Baxley
| Decision Date | 30 December 1972 |
| Docket Number | Civ. A. No. 6636. |
| Citation | 354 F. Supp. 963 |
| Parties | Glenn W. TURNER, Individually, et al. v. William J. BAXLEY, Attorney General, Individually and in his capacity as Attorney General, et al. |
| Court | U.S. District Court — District of Vermont |
COPYRIGHT MATERIAL OMITTED
John A. Burgess, John M. Kilmurry, Burgess & Kilmurry, Montpelier, Vt., Theodore I. Koskoff, Bridgeport, Conn., for plaintiffs.
George L. Beck, Jr., Deputy Atty. Gen., Montgomery, Ala., for William J. Baxley, Atty. Gen. of Ala.
Jimmy D. Patton, Asst. Atty. Gen., Little Rock, Ark., for Ray Thornton, Atty. Gen. of Ark.
Thomas K. McGuire, Deputy Atty. Gen., Dept. of Justice, Sacramento, Cal., for Evelle J. Younger, Atty. Gen. of Cal.
Daniel R. Schaefer, Asst. Atty. Gen., Hartford, Conn., for Robert K. Killian, Atty. Gen. of Conn.
Mason E. Turner, Jr., Deputy Atty. Gen., Dover, Del., for W. Laird Stabler, Atty. Gen. of Del.
Richard Greener, Deputy Atty. Gen., Boise, Idaho, for W. Anthony Park, Atty. Gen. of Idaho Robert S. Atkins and Howard R. Kaufman, Asst. Attys. Gen., Chicago, Ill., for William J. Scott, Atty. Gen. of Ill.
Edward W. Johnson, Deputy Atty. Gen., Indianapolis, Ind., for Theodore L. Sendak, Atty. Gen. of Ind.
Douglas R. Carlson, Asst. Atty. Gen., Des Moines, Iowa, for Richard C. Turner, Atty. Gen. of Iowa.
Lance W. Burr, Asst. Atty. Gen., Topeka, Kan., for Vern Miller, Atty. Gen. of Kan.
John E. Quinn, Asst. Atty. Gen., Consumer Protection Div., Augusta, Me., for James S. Erwin, Atty. Gen. of Me.
David S. Nelson, Asst. Atty. Gen., Consumer Protection Div., Boston, Mass., for Robert H. Quinn, Atty. Gen. of Mass.
Stewart H. Freeman, Asst. Sol. Gen., Lansing, Mich., for Frank J. Kelley, Atty. Gen. of Mich.
Harvey M. Tettlebaum, Asst. Atty. Gen., Jefferson City, Mo., for John C. Danforth, Atty. Gen. of Mo.
Richard A. Hampe, Asst. Atty. Gen., Concord, N. H., for Warren B. Rudman, Atty. Gen. of N. H.
Richard Grieves, Deputy Atty. Gen., Dept. of Law and Public Safety, Div. of Law, Newark, N. J., for George F. Kugler, Jr., Atty. Gen. of N. J.
Joel Lewittes, Asst. Atty. Gen., New York City, for Louis J. Lefkowitz, Atty. Gen. of N. Y.
Donald A. Davis, Associate Atty. Gen., Dept. of Justice, Raleigh, N. C., for Robert B. Morgan, Atty. Gen. of N. C.
Wick, Dinse & Allen, Burlington, Vt., and W. Michael Gillette, Chief Counsel, Dept. of Justice, Consumer Protection Div., Portland, Or., for Lee Johnson, Atty. Gen. of Or.
Joel Weisberg, Deputy Atty. Gen., Harrisburg, Pa., for J. Shane Creamer, Atty. Gen. of Pa.
Van Thompson, Jr., Asst. Atty. Gen., Antitrust and Consumer Protection Div., Austin, Tex., for Crawford C. Martin, Atty. Gen. of Tex.
Martin K. Miller, Asst. Atty. Gen., Montpelier, Vt., and Paul, Frank & Collins, Burlington, Vt., for James M. Jeffords, Atty. Gen. of Vt., Howard Goldberg and State of Vermont.
Vann H. Lefcoe, Asst. Atty. Gen., Richmond, Va., for Andrew P. Miller, Atty. Gen. of Va.
Joseph S. Montecucco, Asst. Atty. Gen., Temple of Justice, Olympia, Wash., for Slade Gorton, Atty. Gen. of Wash.
Chauncey H. Browning, Jr., Atty. Gen. of West Va., pro se.
Bruce A. Craig, Asst. Atty. Gen., Madison, Wis., for Robert W. Warren, Atty. Gen. of Wis.
Paterson, Gibson, Noble & Brownell, Montpelier, Vt., and Thomas A. Shaw, Jr., Breed, Abbott & Morgan, New York City, for Council of Better Business Bureaus, Inc.
James A. Laurenson, Deputy Atty. Gen., Columbus, Ohio, for William J. Brown, Atty. Gen. of Ohio.
Koscot Interplanetary, Inc., and Dare To Be Great, Inc., are corporations organized under the laws of the State of Florida. Turner is the principal stockholder in each corporation. The defendants are the Attorney General of Vermont and the Attorneys General of twenty-five other states, the Assistant Attorney General of the State of Vermont, the State of Vermont and the Council of Better Business Bureaus, Inc., a corporation existing under the laws of the District of Columbia. On September 6, 1972, the plaintiffs moved to join the Attorney General of Ohio as an additional party defendant. The plaintiffs request compensatory and punitive damages in excess of five hundred (500) million dollars.
The complaint is long and interrelated, but may be separated into three distinct parts. In Counts I, II and III, the plaintiffs complain against the State of Vermont, its Attorney General, James M. Jeffords, and his assistant, Howard Goldberg. They allege that Attorney General Jeffords has promulgated a regulation which deprives the plaintiffs of certain constitutional rights. The promulgation is alleged to be an overt act in furtherance of the conspiracy claimed in subsequent counts. It is further alleged that Jeffords and Goldberg have maliciously prosecuted plaintiffs and published news releases intending to deprive plaintiffs of certain constitutional rights.
Counts IV and V are directed against the Attorneys General of the twenty-six states and allege a conspiracy to violate certain civil rights of the plaintiffs in violation of 42 U.S.C. § 1985.
Counts VI through X add, as a party defendant to the Attorneys General, the Council of Better Business Bureaus, Inc. The plaintiffs allege that the defendants jointly and severally, alone and in concert, acted to injure plaintiffs' business and their products.
On August 17, 1972, the Court issued Pretrial Order No. 1 which stayed all pending discovery procedure and established a date for a preliminary pretrial conference. This conference was held on September 26 and 27, 1972, with all parties present or represented by counsel. A hearing was held on the Motions to Quash, to Dismiss and to Strike, filed by counsel on behalf of twenty-one Attorney General defendants, and joined in by counsel for the remaining defendants. A pretrial order was issued which incorporates the plaintiffs' withdrawal of their requests for a class action and for the convening of a three-judge court to consider the statutes and regulations of states other than Vermont.
Further hearings were held on November 17, 1972, on questions which relate particularly to the three Vermont defendants and the Council of Better Business Bureaus, Inc. At this hearing the plaintiffs withdrew and undertook to waive their request to convene a three-judge court to determine the constitutionality of 9 V.S.A. § 2453 and Consumer Protection Regulation 1-A.1
While the constitutionality of a statute may be determined by a single judge, injunctive relief against its operation and enforcement may be granted only by a court composed of three judges. 28 U.S.C. § 2281. This mandate of the statute affects jurisdiction and the requirement is not subject to waiver by the parties. Riss & Co. v. Hoch, 99 F.2d 553 (10th Cir. 1938). Since the plaintiffs' statement in oral argument did not relinquish the prayer for injunctive relief, it appears that the waiver undertaken at that time was incomplete or improvidently stated. Absent a written stipulation to this effect, as then indicated, the Court considers the proposed waiver ineffectual or withdrawn.
Returning to Count I, more specifically, the plaintiffs allege that Attorney General Jeffords, acting both individually and officially and under color of state law, promulgated a certain regulation which prohibits, but does not regulate, the business activities, right to transact business and right to contract in violation of the United States Constitution. They request the convening of a three-judge district court, temporary and permanent injunctions against the enforcement of the regulation and seek declaratory relief. They also claim monetary damages.
Counts II and III allege that Jeffords and his assistant, Goldberg, acting under color of and pursuant to state law, selectively and maliciously prosecuted plaintiffs and issued public statements intending to influence potential jurors and to injure plaintiffs by curtailing their right to transact business. The plaintiffs request temporary and permanent injunctive relief restraining defendants from proceeding with any actions against the plaintiffs and monetary damages.
The controlling question in the complaint against the State of Vermont alleged in Counts I, II and III is whether this defendant is immune from suit. Clearly the State of Vermont is not to be considered a "person" within the scope of an action based on 42 U.S.C. § 1981 et seq. Zuckerman v Appellate Division, 421 F.2d 625, 626 (2d Cir. 1970); United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3rd Cir. 1969), cert. denied 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970); Harty v. Rockefeller, 338 F. Supp. 367, 368 (S.D.N.Y.1972). See also, Monroe v. Pape, 365 U.S. 167, 191, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
Unless the State of Vermont has waived its sovereign immunity, the Eleventh Amendment to the United States Constitution prevents the exercise of judicial power against this defendant. Absent such a waiver, this Court is without jurisdiction to hear that aspect of the complaint which is asserted against the State of Vermont. Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 465, 65 S.Ct. 347, 89 L.Ed. 389 (1945). The waiver of sovereign immunity provided in 12 V.S. A. §§ 5601-5605 specifically excludes any claim founded upon an act or omission of an employee of the state in the execution of a statute or regulation, whether or not such statute or regulation is valid or invalid. The statute proscribes the waiver by limiting jurisdiction to the county courts of Vermont.2 Waiver and consent have been withheld from the State to action against the State in the federal courts. Kennecott Copper Corp. v. Tax Commission, 327 U.S. 573, 579, 66 S.Ct. 745, 90 L.Ed. 862 (1946); Ford Motor Co. v. Department of Treasury of Indiana, supra.
The complaint also fails to bring the action against Vermont within the waiver provisions of 29 V.S.A. § 1403. Lewis...
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