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Green v. Board of Elections

United States Court of Appeals for the Second Circuit

April 3, 1967, Argued ; June 13, 1967, Decided

No. 388, Docket No. 30933


 [*447]  FRIENDLY, Circuit Judge:

Plaintiff Gilbert Green was one of the defendants convicted in the well-known case of United States v. Dennis, 183 F.2d 201 (2 Cir. 1950), aff'd, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), of having conspired to organize the Communist Party as a group to teach and advocate the overthrow and destruction of the government by force and violence, and to advocate and teach the duty and necessity of overthrowing and destroying the government by such means, 18 U.S.C. § 11 (1946 ed.), now, as amended, 18 U.S.C. § 2385. He was sentenced to serve a term of five years imprisonment and to pay a fine of $10,000. After the Supreme Court's mandate had issued, he failed to surrender to serve his term and remained a fugitive for more than four and a half years. When he finally surrendered, he was convicted of contempt, 18 U.S.C. § 401(3), and was sentenced for an additional three years. See Green v. United States, 356 U.S. 165, 78 S. Ct. 632, 2 L. Ed. 2d 672 (1958). [**2]  He was released on parole in 1961 and this status was concluded in 1963. Both offenses constituted felonies under federal law, 18 U.S.C. § 1(1).

] Section 152 of the New York Election Law, McKinney's Consol.Laws, c. 17, enacted pursuant to Article 2, § 3, of that  [*448]  state's constitution, 1 provides in pertinent part that no person "convicted of a felony in a federal court of an offense of which such court has exclusive jurisdiction, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the president of the United States." Green has not been; indeed he has not sought such relief. ] New York's Penal Law, McKinney's Consol.Laws, c. 40 makes it a felony for any person to register or attempt to register as an elector knowing that he will not be a qualified voter, §§ 510-a and 752. Claiming that these New York statutes deprived him of various rights guaranteed by the Constitution of the United States, Green filed suit in the District Court for the Southern District of New York seeking a declaratory judgment of nullity and negative and affirmative injunctive relief, both temporary [**3]  and permanent. He asked that a court of three judges be convened pursuant to 28 U.S.C. § 2281 and § 2284 to hear his case. Later he moved for summary judgment and the Attorney General cross-moved to dismiss the complaint both for lack of jurisdiction in failing to present a substantial federal question and also on the merits in failing to state a claim on which relief can be granted. Concluding that the complaint did not state a substantial federal claim, Judge Tyler denied plaintiff's requests and granted the Attorney General's motion to dismiss for want of jurisdiction, 259 F. Supp. 290. Green appeals from that order.

It is common ground, as we recently reaffirmed in Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 130 (2 Cir. 1967), citing many cases, that ] "when a complaint for an injunction makes a claim of unconstitutionality [**4]  which on its face would require a court of three judges * * *, the single district judge should consider whether the claim is substantial and, if he finds it is not, refuse to convoke a court of three judges and dismiss the action." It is also common ground that such a decision by a district judge is reviewable in the court of appeals and that the criterion is that, as said in California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S. Ct. 865, 866, 82 L. Ed. 1323 (1938): "The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject."

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380 F.2d 445 *; 1967 U.S. App. LEXIS 6032 **

Gilbert GREEN, Plaintiff-Appellant, v. BOARD OF ELECTIONS OF the CITY OF NEW YORK, Louis J. Lefkowitz, Attorney General of the State of New York, and Frank S. Hogan, District Attorney of the County of New York, Defendants-Appellees

Disposition:  [**1]   Affirmed


franchise, felons, convicted, felonies, bill of attainder, district judge, lack of merit, cases

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