Romero

MEMORANDUM OPINION AND ORDER

Plaintiffs herein attack the exclusion, by both California and federal statutes, of agricultural labor from the definition of “employment” for the purposes of unemployment compensation. 26 U.S.C. § 3306 (c) (1), (k); Calif.Unempl.Ins.Code, §§ 625-627. Essentially, they argue that this exclusion, when considered in light of the economic and social changes since the enactment of the Federal Unemployment Tax Act, constitutes “invidious discrimination” within the meaning of the due process and equal protection clauses of the Constitution.

The state and federal defendants moved to dismiss on various procedural grounds, invoking, among other things, sovereign immunity, the limits on federal equitable jurisdiction in tax cases (28 Ú.S.C. §§ 1341, 2201 and 26 U.S.C. § 7421 ), and failure to join necessary parties under Rule 19 of the Federal Rules of Civil Procedure. These motions were denied by this Court’s Order of July 9, 1970. Also denied at this time was plaintiff’s motion for a preliminary injunction.

*1202 A three judge Court having been appointed under 28 U.S.C. § 2281 , the matter was heard on all pending motions, including plaintiffs’ motions for…

(dissenting):

I must respectfully dissent. The Court, by its order this day entered, unreasonably extends the ruling in Dandridge v. Williams, 397 U.S. 471 , 90 S.Ct. 1153 , 25 L.Ed.2d 491 (1970), to say that if there is “any conceivable state of facts” which might make the classification reasonable, the continuing exclusion of agricultural labor from the benefits of unemployment compensation is constitutional, even though the facts and considerations which prompted Congress to exclude them in 1935 no longer exist. Such interpretation would unduly limit, if not cripple, the constitutional power of judicial review of the Court. Furthermore, were I to deem the Court’s interpretation of Dandridge to be correct, and if, as the Court concedes, “a legislative classification must be judged in the light of today’s circumstances,” then, consistent with the purpose of the Federal Unemployment Tax Act, there is no truly “conceivable state of facts” in or out of the record in this case upon which to found a classification which continues the exclusion of more than 1,500,000 agricultural workers from the benefits of a statutory scheme intended to correct the very evils of which they probably…

Before HAMLIN, Circuit Judge, and ZIRPOLI and WOLLENBERG, District Judges.

PER CURIAM.

Plaintiffs herein attack the exclusion, by both California and federal statutes, of agricultural labor from the definition of "employment" for the purposes of unemployment compensation. 26 U.S.C. § 3306 (c) (1), (k); Calif.Unempl.Ins.Code, §§ 625-627. Essentially, they argue that this exclusion, when considered in light of the economic and social changes since the enactment of the Federal Unemployment Tax Act, constitutes "invidious discrimination" within the meaning of the due process and equal protection clauses of the Constitution.

The state and federal defendants moved to dismiss on various procedural grounds, invoking, among other things, sovereign immunity, the limits on federal equitable jurisdiction in tax cases ( 28 U.S.C. §§ 1341 , 2201 and 26 U.S.C. § 7421 ), and failure to join necessary parties under Rule 19 of the Federal Rules of Civil Procedure. These motions were denied by this Court's Order of July 9, 1970. Also denied at this time was plaintiff's motion for a preliminary injunction.

A three judge Court having been appointed under 28 U.S.C. § 2281 , the matter was heard on…