Native American Church of Navajoland, Inc. v. Arizona Corporation Commission/Dissent Douglas

MR. JUSTICE DOUGLAS, with him MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST join, dissenting.

This is a direct appeal from the order of a three-judge District Court, convened pursuant to 28 U.S.C. § 2281, denying appellants' prayer for injunctive relief. Jurisdiction over the appeal is based upon 28 U.S.C. § 1253. If the three-judge court were improperly convened, however, the appeal lies not to this Court, but to the Court of Appeals. Moody v. Flowers, 387 U.S. 97. My [p902] analysis leads me to conclude that a three-judge court was not required, so I would dismiss this appeal.

The controversy involves the efforts of appellant Native American Church of Navajoland, Inc., to obtain a certificate of incorporation from the Arizona Corporation Commission. According to Arizona law, "Any number of persons may associate themselves together and become incorporated for the transaction of any lawful business." Ariz. Rev. Stat. Ann. § 10-121 (emphasis supplied). The Commission refused to issue the certificate for the reason that it believed appellant Church's proposed Articles of Incorporation revealed that the organization had an unlawful purpose for incorporating, that being "to work for unity in the use of Peyote, as a Sacrament and as a means of divine healing through its Divine Power." It appears to be conceded that the Commission's decision was prompted by the fact that the use, possession, and sale of peyote is made a misdemeanor by Ariz. Rev. Stat. Ann. § 36-1061, and because peyote is subject to regulation as a "dangerous drug" under Ariz. Rev. Stat. Ann. §§ 32-1964 (A)(7), 32-1965, and 32-1975. Appellants then sought declaratory and injunctive relief from the District Court.

Two injunctions were sought. The first asked that the Corporation Commission be enjoined from refusing to grant appellants a certificate of incorporation "for failure to comply with" Ariz. Rev. Stat. Ann. §§ 10-121 and 36-1061. Insofar as this prayer asked to enjoin Commission action taken under color of Ariz. Rev. Stat. Ann. § 10-121, however, it was insufficient to require a three-judge court. Nowhere in their complaint did appellants attack the constitutionality of § 10-121, either on its face or as applied. Indeed, they concede its constitutionality before this Court, stating explicitly that it is "neutral in scope and application." (Reply Brief for Appellants 4.) But, as has been long held, an action to [p903] enjoin the allegedly unconstitutional result reached by the Commission in the exercise of its authority under § 10-121 would not sustain the jurisdiction of a three-judge court. Phillips v. United States, 312 U.S. 246; Ex parte Bransford, 310 U.S. 354; Ex parte Hobbs, 280 U.S. 168. "'It is necessary to distinguish between a petition for injunction on the ground of the unconstitutionality of a statute as applied, which required a three-judge court, and a petition which seeks an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional. The latter petition does not require a three-judge court. In such a case the attack is aimed at an allegedly erroneous administrative action...' Ex parte Bransford, supra, at 361."

[p904] Moreover, a three-judge court was not required to hear appellants' challenge to the Commission's alleged "enforcement" of the Arizona drug law which was attacked as unconstitutional. The Commission is not authorized by state law to enforce criminal statutes. Its authority extends only to the enforcement of the negative implications of Ariz. Rev. Stat. Ann. § 10-121. Its opinion that the use of peyote in religious sacraments is an unlawful purpose for incorporation does not reflect an official position on the part of those state officers who are charged with law enforcement that members of the Native American Church can be arrested for observing the tenets of their religion. Section 2281 requires that appellants' action be one to restrain "the action of any officer of such State in the enforcement or execution of such statute" and this requirement cannot be circumvented "by [p905] joining, as nominal parties defendant, state officers whose action is not the effective means of the enforcement or execution of the challenged statute," Wilentz v. Sovereign Camp, 306 U.S. 573, 579-580. This prayer, therefore, was also insufficient to require a three-judge court.

Appellants' second prayer for injunctive relief seems at first glance to cure the above-mentioned defects. It prays that the Governor of Arizona "and his subordinate officials, agents, and employees" be restrained from enforcing the Arizona drug laws against appellants "in any way which infringes upon their right to the free exercise of their religion." The difficulty is that, taking the complaint "as we find it," Moody v. Flowers, supra, at 104, it nowhere appears that the challenged statutes have ever been, are now, or ever will be enforced against appellants. The complaint, and the motion to dismiss filed in response thereto, permit the inference that Arizona already purports to except the Native American Church from the operation of the challenged laws. An amended complaint might not be open to this criticism. But we require that the substantiality of the federal question presented appear from the face of the pleadings that [p206] are filed, not those which might have been. Oklahoma Gas Co. v. Packing Co., 292 U.S. 386; Arneson v. Denny, 25 F. 2d 988, Bunce v. Williams, 159 F. Supp. 325.

Appellants' failure to come under § 2281 might appear to rest on a view of pleading at a variance with the liberal notions which are said to underlie the Federal Rules. But, as we have often remarked, it is § 2281 which is at variance with our notions of orderly federal procedures. It is not "a measure of broad social policy to be construed with great liberality, but... an enactment technical in the strict sense of the term and to be applied as such." Phillips v. United States, supra, at 251.

We should vacate the judgment below and remand for the entry of a fresh decree, so that appellants might pursue their appropriate remedy in the Court of Appeals. Moody v. Flowers, supra; Phillips v. United States, supra.