The opinion of the court was delivered by: LUONGO
This is an action under the Civil Rights Act to enjoin a criminal prosecution presently under way in the state court.
The power of this Court to issue an injunction under these circumstances is not free from doubt. 28 United States Code, Section 2283, prohibits injunction of state court proceedings except where expressly authorized by law.
In Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22, the Supreme Court reserved the question whether the Civil Rights Act, 42 United States Code, Section 1983, grants such express authorization.
While the Supreme Court has not ruled specifically on this question, the Court of Appeals for this Circuit appears to have. In Cooper v. Hutchinson, 184 F.2d 119, it was held that the reference in Section 1983 of Title 42 is such an express authorization and confers the power to enjoin state court proceedings.
In the absence of a definitive expression to the contrary from the Supreme Court, I am bound by what appears to be the ruling of the Third Circuit, and I therefore proceed to a consideration of the merits of plaintiff's claim.
Mr. Lane's claim is made up of two parts. The first part is that which we may characterize generally as complaint of deprivation or denial of due process, and the second part consists of an attack upon the state statute under which Mr. Lane's prosecution in the state court is laid, the attack being that the state statute is unconstitutional for vagueness.
I will treat the second aspect first. To the extent that in this proceeding there is sought a declaration of the unconstitutionality of the state statute, that is beyond my power.
Title 28, United States Code, Section 2281, provides that the constitutionality of state statutes may be determined only by a three-judge court.
Counsel for plaintiff were aware of that provision but chose nevertheless to proceed by motion for injunction to a single-judge court.
In counsels' memorandum of law, they have frankly conceded that in any event it would be premature to judge the constitutionality of the state statute, since it has not yet been interpreted by the state court.
In any event, I have not been asked to convene or to seek the convening of a three-judge court under Section 2281, and I must, therefore, consider myself without power to deal with the alleged unconstitutionality of the state statute under which Mr. Lane's indictments were had.
I will proceed now to the category of charges of deprivation of due process. Those charges are based on certain alleged summary dispositions of various motions by the Trial Judge, upon certain summary dispositions of appeals from those rulings by the Trial Judge, by the appellate courts of Pennsylvania, upon the charge of exclusion of Negroes from the venire lists, and finally, the charge of ...