Perez v. Ledesma/Dissent Douglas

Mr. Justice DOUGLAS dissenting in part.

* The three-judge panel was properly convened under 28 U.S.C. § 2281 to consider the validity of a Louisiana statute of general application. That court was also asked, however, to pass on an ordinance of St. Bernard Parish. But I agree with part III of the opinion of the Court written by Mr. Justice BLACK that we have no jurisdiction over that phase of the litigation.

It is by now elementary that a three-judge court may not be convened to consider the validity of a local ordinance or a statute of local application. Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544, 1547-1548, 18 L.Ed.2d 643. The three-judge court recognized that it had no jurisdiction to pass upon the constitutionality of the ordinance; but it expressed 'its views * *  * in the interest of judicial economy (since it was) shared by the initiating federal district judge and is adopted by reference in his opinion issued contemporaneously herewith.' 304 F.Supp. 662, 670 n. 31. It then stated that '(W)e have examined the ordinance and find it to be unconstitutional and unenforceable.' Id., at 670.

The single District Judge then ordered that a judgment be entered, holding that the ordinance was unconstitutional. 304 F.Supp., at 671. That order is obviously the judgment which is the basis of an appeal. Later on, the clerk also entered a judgment to that effect for the three-judge court.

The judgment entered pursuant to the order of the single District Judge should go to the Court of Appeals for review, not to this Court. Moreover, even if the judgment entered by the clerk was authorized by the three-judge court, it is not properly here. For the order or judgment concerning the ordinance would be here only if the three-judge court had pendent jurisdiction over the claim.

Pendent jurisdiction does extend to nonconstitutional grounds for challenging a statute when a constitutional challenge is also raised. Siler v. Louisville & N.R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753; Davis v. Wallace, 257 U.S. 478, 42 S.Ct. 164, 66 L.Ed. 325; Sterling v. Constantin, 287 U.S. 378, 393, 53 S.Ct. 190, 193, 77 L.Ed. 375; United States v. Georgia Pub. Serv. Comm'n, 371 U.S. 285, 83 S.Ct. 397, 9 L.Ed.2d 317; Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 75-85, 80 S.Ct. 568, 570, 575-576, 4 L.Ed.2d 568; and Flast v. Cohen, 392 U.S. 83, 88 91, 88 S.Ct. 1942, 1946, 1947-1948, 20 L.Ed.2d 947. State causes of action have been appended to federal causes of action in a one-judge court where all causes of action arose out of the same set of facts. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218. This case, however, does not involve a challenge to one statute or a request for one award of relief on different grounds, but a challenge to two different laws on the same grounds. The only argument for considering both these laws together is that Ledesma was charged under both. This is not sufficient, under any ruling of this Court, to give jurisdiction, on direct appeal, over the ruling. The appellants did not challenge the jurisdiction of the three-judge court or the appellate jurisdiction of this Court over this claim. But subject matter jurisdiction of the federal courts may not be bestowed by the parties. United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 602, 82 L.Ed. 764. The cases cited by appellants do not support jurisdiction over this claim. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179, allowed a challenge to an administrative action, as not authorized by statute, to be joined with a constitutional attack on the statutes which purportedly authorized the action. Milky Way Productions, Inc. v. Leary (together with New York Feed Co. v. Leary), D.C., 305 F.Supp. 288, was a per curiam affirmance without opinion. New York Feed Co. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78. The issues presented to this Court were conceded by all parties to be constitutional attacks on the obscenity statutes and the arrest warrant statutes of New York. Because the three-judge court had jurisdiction over the attack on the arrest warrant statutes, independent of any other claim, the issue of pendent jurisdiction was not involved and was not raised. Therefore, that problem was not considered in our per curiam, and our affirmance was not a holding on pendent jurisdiction. We cannot decide Perez on the basis of Milky Way, but only on the basis of applicable precedent and reason. And no precedent or reason is advanced for any enlargement of pendent jurisdiction.

If a rewriting of the law on pendent jurisdiction is to be done, the Congress should do it.

The present judgment should be reviewed in the Court of Appeals, not here. Rorick v. Board of Comm'rs, 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242.

As to the orders of the three-judge court suppressing evidence in the prosecution under the Louisiana statute, which the Court sets aside, I dissent. My views, which are not congenial to the majority, are set forth at some length in Younger v. Harris, 401 U.S., p. 58, 91 S.Ct., p. 760, and Dyson v. Stein, 401 U.S., p. 204, 91 S.Ct., p. 772, decided this day.