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ROWLAND v. TARR

April 27, 1972

Andrew ROWLAND, a minor by his guardian Lewis Rowland, et al.
v.
Curtis TARR, National Director of Selective Service, Henry R. Sherrard, Acting Pennsylvania State Director of Selective Service, Local Board No. 138


Gorbey, District Judge.


The opinion of the court was delivered by: GORBEY

GORBEY, District Judge.

 Plaintiffs, both individually and as representatives of a class, request convention of a three-judge district court pursuant to 28 U.S.C. §§ 2282, 2284 to challenge the Military Selective Service Act of 1967 (MSSA). *fn1" The specific relief sought is a declaratory judgment of unconstitutionality and injunctive relief against enforcement.

 Plaintiffs are four male residents of the Eastern District of Pennsylvania, three of whom at the filing time of this action, had not reached their eighteenth birthday. The fourth has registered with the Selective Service System pursuant to the MSSA.

 Defendants, through the United States Attorney for the Eastern District of Pennsylvania, have opposed the convention of a three-judge court and have moved to dismiss the complaint.

 Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331, 1343, 2201, 2202; 42 U.S.C. §§ 1981, 1983 and 1985 and the U.S. Const. amends. I, V, IX, X and XIII.

 As a single district judge faced with an application for a three-judge court, my initial determination is the breadth and depth of my scrutiny. Little guidance can be derived from the statutory language. While the procedure is statutorily defined once the three-judge court is impaneled, *fn2" far from manifest is the threshold convention determination itself. *fn3"

 We look for direction to the case of Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S. Ct. 1294, 1296, 8 L. Ed. 2d 794 (1962) (per curiam), where the single judge's duties are delineated:

 
"When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute." *fn4"

 We must, of course, begin any inquiry of threshold determinations with the issue of jurisdiction. Article III, the judiciary article of the Constitution, enumerates the cases and controversies embraced within the judicial power of the United States. We therefore examine the suit before us in accordance with the potential for federal jurisdiction found in article III.

 It should be recognized that unconstitutional statutes may exist but unless they are embodied in a case properly susceptible of judicial determination, the courts cannot pronounce their unconstitutionality. Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246.

 In the 1968 case of Flast v. Cohen, 392 U.S. 83, 94-95, 88 S. Ct. 1942, 1949-1950, 20 L. Ed. 2d 947, Chief Justice Warren elaborated on justiciability:

 
"Embodied in the words 'cases' and 'controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine."

 In Baker v. Carr, 369 U.S. 186, 210-211, 82 S. Ct. 691, 7 L. Ed. 2d 663, the most recent definitive pronouncement of the political question doctrine, Justice Brennan writing for the majority maintained that the political question doctrine should be considered as a function of the federal ...


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