Mitchell v. Donovan/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

I agree with the District Court that the case is too hypothetical to qualify as a 'case' or 'controversy' within the meaning of Article III and I would affirm. I do not, however, share the aversion to 28 U.S.C. § 1253 which the Court's opinion reflects. I would be hospitable to its aim and purpose as my dissent in Swift & Co. v. Wickham, 382 U.S. 111, 129, 86 S.Ct. 258, 15 L.Ed.2d 194, indicates. The declaratory judgment is, I think, 'an order granting or denying * *  * an *  *  * injunction' within the meaning of § 1253.

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, is not to the contrary. It merely held that is some circumstances 'an action solely for declaratory relief' could be tried before a single judge where the 'relief sought and the order entered affected an Act of Congress in a totally noncoercive fashion.' Id., at 154, 155, 83 S.Ct. at 560. We indicated, however, that a different result would follow 'whenever the operation of a statutory scheme may be immediately disrupted before a final judicial determination of the validity of the trial court's order can be obtained.' Id., at 155, 83 S.Ct. at 560.

The Kennedy case, in other words, involved solely the question whether a three-judge court need always be summoned where no injunctive relief was asked or contemplated. The answer involved an analysis of 28 U.S.C. § 2281 and § 2282. We are now concerned with s 1253 and the meaning of 'an order granting or denying * *  * an *  *  * injunction.' The declaratory judgment may well contain a 'thou shalt not' as commanding as any injunction. Or its refusal may be as definitive an adjudication as the refusal of an injunction. Ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid.

Where, as here, the three-judge court was properly convened, I would think that any action it took, which was denying or granting an injunction or its equivalent, would be properly here under 28 U.S.C. § 1253.