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February 22, 1972

Edward F. DIXON et al., Plaintiffs,

Nealon, District Judge.

The opinion of the court was delivered by: NEALON

NEALON, District Judge.

 Plaintiffs, individually and on behalf of all others similarly situated, have filed a Civil Rights complaint under 42 U.S.C. § 1983 seeking declaratory and injunctive relief. They contend that the defendants are depriving them of rights guaranteed by the Fourth, Fifth, Ninth, Tenth and Fourteenth Amendments of the United States Constitution. The basis of their complaint concerns an investigation being conducted by the Pennsylvania Crime Commission into allegedly fraudulent practices in connection with the awarding of state contracts for mine flushing projects. While plaintiffs seek broad injunctive and declaratory relief, the only matter presently before the Court is plaintiffs' application for the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284 to adjudicate their claim that 71 P.S. § 307-7 et seq., the legislation creating and empowering the Commission, is unconstitutional.

 On November 16, 1971, this Court denied plaintiffs' request for a preliminary injunction as to Counts I-IV of their original complaint on the basis that their offer of proof failed, as a matter of law, to show a bad faith investigation on the part of defendants or irreparable harm to the plaintiffs. National Land & Investment Company v. Specter, 428 F.2d 91 (3rd Cir. 1970). Subsequently, on December 20, 1971, plaintiffs filed an amended complaint adding additional and diverse challenges to the constitutionality of the Crime Commission. However, based upon the files and the records in the instant case and after reviewing the briefs submitted, the Court is of the opinion that plaintiffs' application to convene a three-judge court must be denied. *fn1"

 Because the United States Supreme Court has recognized that the requirement of a three-judge court has imposed a serious drain upon the federal judicial system, a single district judge has an important responsibility in determining whether a three-judge court should be convened. See Phillips v. United States, 312 U.S. 246, 61 S. Ct. 480, 85 L. Ed. 800 (1941). Accordingly, the district judge to whom such application is initially made is required to decide not only whether the constitutional question raised is substantial, but also whether the complaint at least formally alleges a basis for equitable relief. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962); Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933); Majuri v. United States, 431 F.2d 469 (3rd Cir. 1970).

 In determining the substantiality of a constitutional question, the district court must make a judicial decision. Ex parte Poresky, supra. Its function is analogous to that of a court reviewing a complaint for legal sufficiency under Rule 12(b)(1) or 12(b)(6) of the Fed. R. Civ. P. Majuri v. United States, supra. at 472. For these purposes, the district court is bound to construe the complaint liberally in favor of the plaintiff and to accept the well-pleaded facts of a complaint as true. Id. However, the court is not bound to accept conclusory allegations that are unsupported and unsupportable. Negrich v. Hohn, 379 F.2d 213, 215 (3rd Cir. 1967). Mere conclusory allegations that a state statute is unconstitutional do not automatically require a district judge to invoke a three-judge court. Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962).

 Plaintiffs' lengthy complaint contains many allegations of purported wrongdoing on the part of the Crime Commission and other state officials. However, the only issue to be decided in this aspect of the case is whether the legislation creating the commission is constitutional, either on its face or as applied. Consequently, only those allegations which relate to this issue will be considered at this time. Plaintiffs' other allegations which relate to the alleged unconstitutional administration of the Crime Commission Act by defendants do not require consideration by a three-judge court but will be considered by this Court at the proper time. Phillips v. United States, supra ; Ex parte Bransford, 310 U.S. 354, 60 S. Ct. 947, 84 L. Ed. 1249 (1940); and cases cited Barron and Holtzoff (Wright ed.) § 52, n. 98.1.

 Guided by these principles, we now turn to a consideration of whether plaintiffs' challenges require the convening of a three-judge court. A careful reading of plaintiffs' complaint and briefs reveals that essentially their challenge is based on the contention that the Commission performs an accusatory function, and that under Jenkins v. McKeithin, 395 U.S. 411, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969), many of the rigors of procedural due process must be afforded to witnesses appearing before it. *fn2" On the other hand, defendants urge that Jenkins is not controlling here and that the plaintiffs' constitutional challenge is insubstantial because it has been foreclosed by the Supreme Court's prior decision in Hannah v. Larche, 363 U.S. 420, 80 S. Ct. 1502, 4 L. Ed. 2d 1307 (1960). I agree.

 In Hannah, the Supreme Court made it clear that different administrative agencies may be governed by different procedural requirements, depending on whether it performs an accusatory or investigatory function.

"'Due process' is an elusive concept. Its exact boundaries are indefinable, and its content varies according to specific factual contexts. Thus, when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process. On the other hand, when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used. . . .

 363 U.S., at 440-444, 80 S. Ct. at 1514-1515.

 Subsequently the Supreme Court expressly reaffirmed this accusatory-investigatory distinction in Jenkins v. McKeithen, supra. There the Court upheld the adequacy of a complaint challenging the constitutional validity of a state commission created to investigate and make findings relating to violations of certain criminal laws. Relying principally on the fact that the Commission exercised a purely accusatory function as opposed to a legislative function, the Court distinguished Hannah and held that where an investigatory commission makes an actual finding that a specific individual is guilty of a crime, the essentials of due process must be afforded to witnesses appearing before the Commission. The Court in Jenkins further distinguished Hannah by pointing out that in Hannah any adverse consequences to those being investigated, such as being subjected to public opprobrium were purely conjectural, and, in any case, even if such consequences were to follow, they were considered to be merely collateral and "not . . . the result of any affirmative determination made by the Commission". Jenkins v. McKeithan, supra at 427, 89 S. Ct. at 1851. (emphasis supplied).

 Thus the question to be resolved in the instant case is whether the Pennsylvania Crime Commission has an accusatory function and is to be governed by the rule in Jenkins or whether it has an investigative, fact-finding function and is to be controlled by the rule in Hannah. Plaintiffs here have attempted to apply the allegations of the Jenkins complaint to the Pennsylvania Crime Commission Act but that attempt cannot survive close scrutiny because a careful reading ...

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