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July 6, 1971

Andrew J. KAELIN et al.,
William B. WARDEN et al.

The opinion of the court was delivered by: LUONGO

LUONGO, District Judge.

Plaintiffs, Andrew J. Kaelin, Elsa Suplee and Lucille Trench, are all qualified voters and registered members of the Democratic Party in Bucks County, Pennsylvania. They have brought this action for declaratory and injunctive relief, seeking a declaration that appointment of one of three Commissioners of Bucks County was pursuant to an unconstitutional state statute, and seeking removal of the Commissioner so appointed. Pursuant to plaintiffs' request a three-judge court was convened under 28 U.S.C. § 2281. *fn1" , *fn2"

Under Pennsylvania law, counties of the second through the eighth class are governed by three Commissioners. Each qualified elector of the county is, however, only permitted to vote for two Commissioners, 16 P.S. §§ 501(a) and 3501(a), thus insuring minority representation. See Commonwealth ex rel. Teller v. Jennings, 409 Pa. 513, 186 A. 2d 916 (1963). In the event of a vacancy in the office of Commissioner, the unexpired term is filled (1) in counties of the second class by appointment by the judges of the Court of Common Pleas of the county from among those electors who voted for the Commissioner whose vacancy is being filled (16 P.S. § 3501(b)), and (2) in counties of the third class (of which Bucks is one) by appointment by the judges of the Court of Common Pleas of the county from among those electors of the county who are members of the same political party as the Commissioner whose unexpired term is being filled. 16 P.S. § 501(b). *fn3"

 On November 7, 1967, Joseph O. Canby, a member of the Republican Party, was elected one of three Commissioners of Bucks County for a four year term commencing January 1968. On June 8, 1970, he resigned. William B. Warden was one of three members of the Republican Party whose names were submitted by the Bucks County Republican Committee to the judges of the Court of Common Pleas of Bucks County. Acting pursuant to 16 P.S. § 501(b), the Bucks County Common Pleas judges appointed Warden to fill Canby's unexpired term. Thereafter this action was instituted seeking, as above noted, a declaration of the unconstitutionality of § 501(b), removal of Warden from office, and an election to fill the vacancy.

 The threshold question is whether this case is an appropriate one for a three-judge court. The majority is of the view that it is.

 A three-judge court under § 2281 should be convened only if (1) an injunction is sought to restrain the enforcement, operation, or execution of a state statute of statewide application; (2) by restraining the action of a state officer in the enforcement or execution of such statute. The purpose of § 2281 is to prevent a single federal judge from paralyzing an entire state regulatory scheme by the issuance of a broad injunctive order. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963); Phillips v. United States, 312 U.S. 246, 61 S. Ct. 480, 85 L. Ed. 800 (1941).

 It is unquestioned that § 501(b) is a statute of statewide applicability. See generally Moody v. Flowers, 387 U.S. 97, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1967); Sailors v. Board of Education, 387 U.S. 105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967). The question here is whether it is now too late to enjoin the enforcement or execution of the statute by state officers since the state officers (the judges of the Court of Common Pleas), have already executed the statute by appointing Warden to fill the vacancy. In the view of the dissent that question must be answered in the affirmative, leaving only an action in the nature of quo warranto to remove Warden from office. Since such a proceeding would concern only a purely local matter, directed at a local officer, the case is one for a single judge, according to the dissent. See Ex parte Collins, 277 U.S. 565, 48 S. Ct. 585, 72 L. Ed. 990 (1928).

 In the opinion of the majority such a view of the case before us overlooks the essence of the relief sought by plaintiffs. At the outset we recognize that it is not enough to satisfy the requirements of § 2281 to seek to enjoin "state officers whose action is not the effective means of the enforcement or execution of the challenged statute." Wilentz v. Sovereign Camp, Woodmen of the World, 306 U.S. 573, 579-580, 59 S. Ct. 709, 713, 83 L. Ed. 994 (1939). Thus, if the injunction sought against the state officers is "but incidental to the sole purpose of the suit," i.e., to prevent the performance by a local officer of a local function, then a three-judge court should not be convened. If, however, injunction against the state officers is necessary to prevent continuing execution or operation of the challenged statute, the requirements of § 2281 are, in our view, satisfied. Cf. Wilentz v. Sovereign Camp, supra.

 In this case plaintiffs seek:


(1) removal of Warden as a Commissioner;


(2) a declaration that § 501(b) is unconstitutional;


(3) a declaration that the office of Commissioner, formerly held by Canby, is vacant; and


(4) an order for a special election by the general electorate to fill the vacancy.

 The parts of the relief requested cannot be effectively separated from the whole, they are inextricably intertwined. Warden's removal (part (1) of the relief requested) can be ordered only if § 501(b) is declared unconstitutional (part (2)). The resulting vacancy (part (3)) requires a means for filling it (part (4)). While it might be argued that the first and third parts of the relief requested have only a local effect, it is hard to avoid the conclusion that the second and fourth parts have a much broader impact. If the statute is declared unconstitutional (part (2)) it would require an order enjoining the judges of the Court of Common Pleas from filling the vacancy by appointment pursuant to the provisions of § 501(b). Plaintiffs have asked the court to order a method, different from that provided by the statute, for filling the vacancy (part (4)). If no method for filling the vacancy is provided, the vacancy would remain until the next general election of county commissioners, a result which would please neither side because it would create the possibility of deadlock between the two remaining commissioners and possibly bring to a halt the operation of the county's affairs.

 If, as the dissent believes, the matter in its present posture is one for a single judge, it could lead to at least two anomalous situations.

 (1) A single judge might hear the case, determine that Warden's appointment was improper because § 501(b) is unconstitutional, remove him from office, but provide no method for filling the vacancy.

 In this situation the judges of the Court of Common Pleas would presumably be free to act again pursuant to the state law which the single judge had ruled unconstitutional, but enforcement of which he lacked power to enjoin. At this point (i.e., before the new appointment) we believe that the dissent would concede that a three-judge court could properly be convened under § 2281. It would be even more anomalous if a three-judge court were then to determine, contrary to the single judge's ruling, that the statute is constitutional, indicating that Warden had been improperly removed from office by the action of the single judge.

 (2) A single judge might hear the case, decide that the act is unconstitutional, remove Warden and order a method of filling the vacancy to meet his conception of applicable constitutional requirements. The method selected would, of necessity, be something other than that provided by § 501(b). Thus the single judge would, in effect, be enjoining state officers (the Common Pleas Judges) from proceeding in accordance with the requirements of state law. This is the very vice § 2281 was intended to avoid.

 In the view of the majority, therefore, it would ignore reality in the instant case to regard the state act as already executed by the state officers, and the actions of the state officers as therefore beyond the reach of a three-judge court, as the dissent suggests. An integral part of the relief plaintiffs seek here is restraint on the state officers. If § 501(b) is unconstitutional, plaintiffs' rights are being violated on a continuing basis so long as Warden remains in office and plaintiffs should be entitled to an injunction under § 2281 prohibiting the state officers from further executing or enforcing the unconstitutional statute.

 We conclude that the matter is a proper one for a three-judge court under 28 U.S.C. § 2281.

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