Sobol v Perez Memorandum

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RICHARD B “ SOBOL, et al., 

Plaintiffs,

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LEANDER H. PEREZ, et al., 

Defendants

UNITED STATES DISTRICT COURT. 

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

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 ̂ Civil Action No.

JZjtL 5 T&'O

67-243
Section E

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PLAINTIFFS' MEMORANDUM IN SUPPORT OF APPLICATION 

FOR CONVENING OF A THREE-JUDGE DISTRICT COURT IN 

PURSUANCE OF 28 U.S.C. § 2281

-At the hearing on plaintiffs' application for a temporary restraining . 

order, February 24, 1967, the Court requested that plaintiffs submit a memorandum 

in support of their contention that this case is one required to be heard by a 

three-judge court pursuant to 28 U.S.C. § 2281 (1964). This memorandum is responsive 

to that request. The text of the section in issue is as follows:

§2281. Injunction against enforcement of State statute; 
three-judge court required

An interlocutory or permanent injunction restraining 
the enforcement, operation or execution of any State 
statute by restraining the action of any officer of such 
State in the enforcement or execution of such statute 
or of an order made by an administrative board or commi- 

j sion acting under'State statutes, shall not be granted 
by'any district court or judge thereof upon the ground of 
the unconstitutionality of such statute unless the appli­
cation therefor is heard and determined by a district 
court of three judges under section 2284 of this title.

Plaintiffs understand the pending question to be whether the present case is one

that asks the injunction of enforcement of a state statute "upon the ground of the
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unconstitutionality of such statute.”

1/ To assist the Court in connection with this jurisdictional question which needs 
to be decided expeditiously, we think it not amiss to note that in our research we 
have found the most useful and complete recent discussions of the three-judge statute 
§ 2281, in 1A MOORE, FEDERAL PRACTICE, para. 0.205, at pp. 2231-2242; WRIGHT, FEDERAL



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I. PLAINTIFFS' AMENDED COMPLAINT PLAINLY REQUIRES THE CONVENING 

OF A THREE-JUDGE COURT BY REASON OF THE ATTACK MADE IN THE 

FOURTH CAUSE OF ACTION UPON THE FACE OF TWO LOUISIANA STATUTES

At the time of filing this memorandum, plaintiffs are filing an amended
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complaint, pursuant to FED. RULE CIV. PRO. 15(a). The amended complaint, in its

FOURTH CAUSE OF ACTION, paras. 21-24, challenges ’ L .S .A. -R. S . 37:213, 37:214 as _ 

unconstitutional upon their faces, on two grounds. First, it is asserted that they 

fail to give fair notice and warning of the conduct which they prohibit, in viola­

tion of the Due Process requirement of such decisions as Lanzetta v. New Jersey, 306

U.S. 451< (1939). Second, it is asserted that they fail to meet the peculiarly
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"strict” standards of "permissible statutory vagueness .... /applicable7 in the area 

of free expression," N.A.A.C.P. v. Button, 371 U„S. 415, 432 (1963). Such facial 

attacks upon the federal constitutionality of a state statute unquestionably call" 

for three-judge adjudication. See, e.g., Baggett v. Bullitt, 377 U.S. 360 (1964); 

Dombrowski v. Pfister, 380 U.S. 479 (1965). And if any non-frivolous contention 

requiring three-judge adjudication is presented in a complaint for injunctive 

relief, the whole case is required to be heard by a three-judge court, including

COURTS 162-167 (1963); Annots., Necessity and propriety (under 28 U.S.C. § 2281) 
of three-judge federal district court in suit to enjoin enforcement of state statute 
or administrative order, 4 L. ed. 2d 1931 (1959), 15 L.. ed. 2d 904 (1966); Currie, 
The Three-Judge District Court in Constitutional Litigation, 32 U. CHI. L. REV. 1 
(1964). •

The treatment in MOORE and WRIGHT is somewhat skimpy on the precise point 
at issue here. The L. ed. annotations are not well organized, but collect most of 
the pertinent cases. In each annotation, IT 11 should be consulted, as well as 1T 13, 
whose title appears most closely on point. By reason of the structure of the annota­
tions, cases involving basically the same issue seem to have been placed in 1T 11 or 
5T 13 depending on whether they hold a three-judge court or a one-judge court appro­
priate. The Currie article is comprehensive, although a bit conceptualistic. It 
cites the previous law review writings in the field.

2/ The initial complaint in this matter, prepared under crisis conditions in the 
wake of plaintiff Sobol's arrest, contained numerous typographical errors, includ­
ing in some places the omission of entire lines. For this reason, counsel for 
plaintiffs are submitting as an amendment an entirely retyped complaint'* correcting 
the errors of the .first complaint as well as amending it generally. We regret the 
inconvenience to the Court and opposing counsel of replacing the old complaint with 
a newly typed document, but we believe that, particularly in a three-judge matter, 
it is imperative that the basic pleading be set aright at the first opportunity.

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claims that a one-judge court might otherwise hear. Florida Lime & Avocado Growers 

v. Jacobsen, 362 U.S. 73 (1960); Paul v. United States, 371 U.S. 245, 249-250 ,£-1963) ; 

United States v. Georgia Public Service Comm'n, 371 U.S. 285, 287-288 (1963); cf. 

Zemel v. Rusk, 381 U„S. 1, 6-7 (1965).

Plaintiffs' amended complaint in its entirety therefore requires 

hearing by a three-judge court. . ■,

II. THE CHALLENGES'TO'TWO LOUISIANA STATUTES AS"APPLIED,

MADE IN THE FIRST, SECOND AND THIRD CAUSES OF ACTION ALSO

REQUIRE ADJUDICATION BY A THREE-JUDGE COURT

Although it is likely that no question concerning the necessity 

for convening a three—judge court to hear this case would have arisen if plaintiffs 

original complaint had contained th : language found in the FOURTH CAUSE OF ACTION of 

the amended complaint, just discus ed, plaintiffs do not rest their request for a 

three-judge court on the FOURTH CAUSE alone. The claims presented in the FIRST,

SECOND and THIRD CAUSES OF ACTION of the amended complaint (reproducing essentially 

the allegations of the' First, Second and Sixth Causes of Action in the original 

complaint) also would require three-judge adjudication, even without the joinder 

of the FOURTH CAUSE. Each of the first three'causes of the amended complaint 

challenges the federal constitutionality of the*' Sthttites^ L.S.A.-R.S. 37:213,

37:214 as applied. Such attacks on the constitutionality of application of state
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legislation call for a three-judge court under 28 U.S.C. 3 2281.

It may be helpful to reduce the several causes of action stated in 

the amended complaint to their essential theories. The factual situation presented 

by the complaint is that plaintiff Sobol, an out-state civil rights attorney 

furnishing gratuitous representation to Negroes and civil rights workers in cases 

involving federal-law issues, in which he represents his clients only in association 

with Louisiana attorneys, has been arrested and charged in Placquemines Parish with 

the unauthorized practice of law. His arrest occurred in connection with his attempt 

to secure bond pending a petition for certiorari to be filed in the Supreme Court of 

the United States on behalf of one of his clients, plaintiff Duncan, who had been 

convicted of a criminal offense in the Placquemines Parish Courts. Plaintiff Sobol

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is a member of the bar of the Supreme Court of the United States, among others.

The FIRST CAUSE OF ACTION asserts, in essence, that the application 

to plaintiff Sobol of the two Louisiana statutes, L.S.A.-R.S. 37:213, 37:214, 

prohibiting the unauthorized practice of law, is unconstitutional because Louisiana 

cannot consistently with the federal Privileges and Immunities Clause.and other 

constitutional provision's, prohibit a member of the bar of the Supreme Court of 

the United States from engaging in activities connected with litigation in that 

Court like those for which plaintiff Sobol is charged; nor can a State punish 

him for engaging in such activities. The SECOND CAUSE OF ACTION asserts that 

plaintiff Sobol's conduct cannot constitutionally be punished under L.S.A.-R.S.

37:213,/ 37:214, because it consists of nothing more than the exercise of federal 

rights (enumerated in the CAUSE) to associate as out-state counsel, and as an
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expert in federal constitutional litigation, with Louisiana counsel in the 

preparation and presentation of federal constitutional and statutory contentions 

in civil rights cases. Plaintiff Sobol's federal rights, and those of his clients, 

are violated by the application to him of the Louisiana unauthorized-practice 

statutes. For this reason, the THIRD CAUSE OF ACTION explicitly alleges that 

these two Louisiana statutes are unconstitutional as applied to plaintiff Sobol.

The FOURTH CAUSE OF ACTION, attacking the statutes on their faces, is 

described in pertinent part in section I of this memorandum. The FIFTH CAUSE OF ACTION 

asserts that plaintiff Sobol's prosecution is designed to harass and to intimidate 

him and his clients in the exercise of their federal civil rights. The SIXTH CAUSE 

asserts specifically that the prosecution harasses and intimidates plaintiff Sobol 

in his activities as an attorney practicing before the federal courts in Louisiana, 

to whose bars he has been, duly admitted; and-that it harasses his clients with a 

design to deprive them of the equal protection of the laws by making his protective 

services unavailable to them. The SEVENTH asserts that- the prosecution furthers a 

pattern and practice in Placquemines Parish and Louisiana to deny Negroes and civil 

rights workers adequate legal representation.

This summary of the complaint makes clear that the first three causes of 

action are classic challenges to the constitutionality of state penal statutes as

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applied to an individual charged under them. The causes assert that the State of 

Louisiana cannot prosecute or convict plaintiff Sobol under these statutes consis­

tently with the Constitution of the United States, and that in their application 

to the conduct for-which he is charged, the statutes are federally unconstitutional. 

The first three causes, therefore, must be differentiated from the last three, 

which assert that the Louisiana statutes are also being used unconstitutionally, 

that is, abused by prosecutorial action designed and effective to destroy federal 

rights. r ...... ...

Decisions of the Supreme Court have always held that challenges of the

first kind require a three-judge district court, although those of the second
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kind sending alone- do not. "It is necessary to distinguish between a petition 

for injunction on the ground of the unconstitutionality of a statute as applied, 

which requires a three-judge court, and a petition which seeks an injunction on 

the ground of the unconstitutionality of the result obtained by the use of a . 

statute which is not attacked as unconstitutional. The latter petition does 

not require a three—judge court. In such a case the attack is aimed at an 

allegedly erroneous administrative action." Ex parte Bransford, 310 U.S. 354,

361 (1940)(dictum).

This principle that three judges are required whenever a complaint seeks

"to restrain ... state officers from enforcing a state statute on the scorS of
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unconstitutionality of its threatened application" has been firmly established by

repeated holdings of the Court. A statute need not be challenged on its face —
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that is, "in all its applications," —  to require the convening of three judges.

"A three—judge court must be convened if it is claimed that the statute, as ap—
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plied to plaintiff, is unconstitutional, even though it may be conceded that 

the statute in general is valid." WRIGHT, FEDERAL COURTS 164 (1963). Several 

cases, particularly, demonstrate the scope of the principle.

3/ Of course, if challenges of both sorts are joined in a single complaint, as here 
the whole complaint must be heard by three judges. See the authorities cited in 
section I of the memorandum, at p. 3 supra.

4/ Kesler v. Department of Public Safety, 369 U.S. 153, 157 (1962)(dictum). Kesler 
has been overruled on another point by Swift & Co-, v. Wickham, 382 U.S. Ill (1965).

5/ Currie, note 1 supra, 32 U. CHI. L. REV. at 46.

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Other decisions requiring three judges to hear constitutional challenges 

 ̂ to state statutes as applied are commonplace. E.g., Stratton v. St. Louis Southwestern
!Ry. Co., 282 U.S. 10 (1930)(state rate-fixing statute challenged as applied to parti-

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cular interstate carrier, under Commerce Clause and on Due Process (confiscation) and 

Equal Protection (discrimination) grounds); United States v. Georgia Public Service 

Comm'n, 371 U.S. 285 (1963)(state carrier tariffs challenged as applied to contractor 

hauling under federal government contract); Davis v. Mabry, 380 U.S. 251 (1965)(per 

curiam), aff’g 232 F. Supp. 930 (W.D. Tex. 1964)(state statute prohibiting the

acquisition of voting residence in a county by military personnel stationed in the
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county challenged as applied to out-state personnel only).
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• It is true that three judges have been held unnecessary where the chal­

lenge is not to the application of a statute, but to "the result obtained by the 

use of a statute which is not attacked as unconstitutional." Ex parte Bransford, 

supra, 310 U.S. at 361. It is also true that the distinction between unconstitu­

tional application and unconstitutional use has sometime proved deviling. See the 

annotations cited in note 1 supra, 4 L. ed. 2d at 1949; 15 L. ed. 2d at 917-918.

But the ground of differentiation between the two sorts of challenges is less obscure
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than it has sometimes been made to appear. We submit that Professor Wright states 

the prevailing test correctly and succinctly: the benchmark is whether, on any par­

ticular constitutional contention of the plaintiff, "it is possible to enjoin state 

officials without holding a state statute unconstitutional, as where it is claimed

6/ See the annotation cited in note 1 supra, 4 L. ed. 2d at 1934-1935: "The line of 
demarcation seems two-fold: (1) a three-judge court is required• only. •Where jthepplaini::.- 
tiff attacks the constitutionality of the-statute, and is not required where the attack 
itself is limited to 'the unconstitutional result reached; (2) a three-judge court is 
not required where the statute is susceptible of a construction and application which 
does not violate the Federal Constitution, and is only misconstrued or erroneously ap­
plied in an individual case, but a three-judge court is required where the statute is 
not susceptible of a construction which does not violate the Federal Constitution."
This proposition is impossibly confusing and unhelpful. Part 1 is useless in the 
absence of any stated ground for distinction between the application of a statute and 
the "result" of its application. This language is simply a misconceived paraphrase of 
the language in Bransford, quoted in text above, which ignores the most critical por­
tions of the. Bransford dictum: "result obtained by the use of a statute which is not 
attacked as unconstitutional." Part 2 is a bad case of a definition with an excluded 
middle term: it does not tell us how many judges are needed if the statute is sus­
ceptible of construction and application as constitutional, but is also rightly con­
strued (rather than misconstrued) and correctly (rather than erroneously) applied, to 
reach a particular unconstitutional application. Moreover, the L. ed. proposition does 
not purport to state the relationship between i-ts parts 1 and 2, whether they are cumu­
lative or alternative tests. The court in Bartlett & Co., Grain v . State Corporation 
Comm'n, 223 F. Supp. 975, 981 (D. Kan. 1963), quotes this L. ed. conception with ap­
proval, but the case may be decided satisfactorily on the ground stated in note 7 infra



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that the officials are administering a constitutional statute in an unconstitutional

manner." WRIGHT, op. cit. supra, at 164. This test is soundly based both on authority
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and on consideration of the purposes of the three-judge statute, and has the virtue

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7/ The cases permitting adjudication by one-judge courts in cases seeking injunction 
on constitutional grounds of state official action involving a state statute, fall into 
one or more of four categories: (1) cases in which the state statute authorizes, but 
does not direct, the official action, e.g., Phillips v. United States, 312 U.S. 246 
(1941); Aaron v. Cooper, 261 F .2d 97 (8th Cir. 1958); cf. Griffin v. County School 
Board, 377 U.S. 218 (1964); (2) cases in which the official action is unconstitutional 
under plaintiff's constitutional theory, whether or not it is based upon a statute that 
can validly be applied to the plaintiff, e.g., Wichita Falls Junior College Dist. v. 
Battle, 204 F.2d 632 (5th Cir. 1953); (3) cases in which plaintiff's theory is that 
the statute does not apply to him, and that it is being abused or misused by state 
officials to harass him unconstitutionally, e.g., Clemmons v. Congress of Racial Equali­
ty , 201 F. Supp. 737 (E.D. La. 1962), rev'd on other grounds, 323 F.2d 54 (5th Cir.
1963) ; and (4) cases in which the state statute expressly turns its application
upon constitutionally permissible incidents, 'so that it cannot be applied to any case 
in which aa unconstitutional result would be obtained, e.g., Bartlett & Co., Grain v. 
State Corporation Comm'n, 223 F. Supp. 975 (D. Kan. 1963). The common consideration 
in each of these situations is that the statute need not be held unconstitutional in 
any application to support the injunction of official action under the theory of 
plaintiff's case. Put another way, the constitutionality of legislative choice, of 
a legislative policy or a legislative determination to reach a challenged result, is 
not in issue in these cases. See note 8 infra. "/T/he attack is aimed at an allegedly 
erroneous administrative action," Ex parte Bransford, supra, 310 U.S. at 361, not at 
a consequence of legislative will.

As stated in text, supra, three judges have invariably been required "if 
the complaint alleges a basis for equitable relief based upon unconstitutionality of 
a statute as applied," Evergreen Review, Inc, v. Cahn, 230 F-. Supp. 498, 502 (E.D.N.Y.
1964) . See authorities collected in text at pp\ 6-7 supra. Where the application of a 
statute is challenged, in the sense that the consequence which the legislature has di­
rected is called into question even in a single aspect, the unconstitutionality of the 
consequence in that aspect compels invalidation of the statute as applied to it, and
a three-judge court is appropriate. The sole possible’ deviation■from this principle that 
we have found is Maison v. Confederated Tribes, 314 F .2d 169 (9th Cir. 1963), where 
an ambiguous footnote says that three judges are not required because "the issue is 
whether statutes and regulations, admittedly valid, can be applied to these plaintiffs.” 
Id. at 170 n. 1. The footnote is unclear since the only challenge mounted on the statute 
as applied to the plaintiffs in Maison was based upon the asserted conflict of the 
statute with a federal treaty, and this alone takes the case out of § 2281. See 
Swift & Co. v. Wickham, 382 U.S. Ill (1965). It is likely the Maison court means to 
say that a contention the statute cannot validly be applied to these plaintiffs on 
this ground does not call for three judges.

8/ The purpose of § 2281 is to avoid the invalidation of state legislative policy 
in regular one-judge proceedings. See Phillips v. United States, 312 U.S. 246, 253 
(1941); Swift & Co. v. Wickham, 382 U.S. Ill, 119 (1965); Currie, supra note 1. It 
therefore makes sense to say that if, but only if, the constitutional challenge goes 
to the consequence of a legislative directive, so that the legislative prescription 
must be denied and the statute invalidated in at least one of its legislatively in­
tended applications, a three-judge court is compelled. See note 7 supra. "But an at­
tack on lawless exercise of authority in a particular case is not an attack upon the 
constitutionality of a statute conferring the authority even though a misreading of 
the statute is invoked as justification.... /T/he enforcement of a ’statute' within 
the meaning of /§"2281/ ... is not sought to be enjoined merely because a state offi­
cial seeks shelter under it by way of defense against a charge of lawlessness." Phil­
lips v. United States, supra, 312 U.S. at 252.

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of the simplicity and ease in administration which the Supreme Court has said is

peculiarly desirable in the construction of such jurisdictional statutes as § 2281.“

' The present complaint presents an excellent exemplification both of 

three-judge and of one-judge issues under the prevailing test. Plaintiffs' FIFTH,

SIXTH and SEVENTH CAUSES OF ACTION are one-judge matters. They claim that the 

Louisiana statutes regulating legal practice are, being used by the defendants to 

harass the plaintiffs and to intimidate and coerce them with the design and effect 

of destroying plaintiffs' enumerated federal rights. If these contentions are sustained, 

plaintiffs are entitled to an injunction wholly without regard to the federal consti­

tutionality of L.S.A.—R.S. 37:213, 37:214. But the FIRST, SECOND and THIRD CAUSES 

stand on a different footing. They assert that L.S.A.-R.S. 37:213, 37:214 are un­

constitutional insofar as they prohibit members of the bar of the Supreme Court'
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from acting as plaintiff Sobol did in plaintiff Duncan's case, and also insofar as 

they prohibit outstate attorneys, associated with local counsel, from rendering 

in Louisiana such unpaid representation to Negroes and civil rights workers in 

exclusively federal matters, as plaintiff Sobol renders. These first three claims 

go directly tofthe federal constitutionality of the application of the statutes, 

and contest consequences which it is assumed the legislation compels, without 

regard to the purposes or collateral effects of their administration by the 

defendants. The causes cannot be sustained without striking down the statutes 

as applied. Therefore, three judges are required to hear the FIRST, SECOND and 

THIRD CAUSES —  and, consequently, the entire case.
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\ Respectfully submitted,

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Alvin J. Bronstein
603 North Farish Street
Jackson, Mississippi 39202

9/ See Swift & Co. v. Wickham, 382 U.S. Ill, 124 (1965). One of the defects of the 
construction of § 2281 suggested in the L. ed. annotation quoted in note 6 supra 
is that it makes the convening of a three-judge court turn in part upon the question 
whether the state statute challenged "is susceptible of a construction and applica­
tion which does not violate the Federal Constitution." But this is the ultimate 
question on the merits of the litigation, and the Swift & Co. decision, in an analo­
gous context, holds that this sort of inquiry into statutory construction is imper­
missible as a test of the jurisdictional line between three-judge and one-judge cases.

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Anthony G. Amsterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Collins, Douglas & Elie
2211 Dryades Street
New Orleans, Louisiana 70113

By:________________________

Hichard B. Sobol
2209 Dryades Street
Hew Orleans, Louisiana 7019.3

Attorneys For Plaintiffs

Dated: February 27, 19^7

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i , CERTIFICATE

A copy of this Memorandum -was delivered to Sydney Provesnal, Esq.., attorney 

for the defendants, this 27th day of February, 1967*

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