John Marshall v. Grant Sawyer, as Governor of the State of Nevada

301 F.2d 639 John MARSHALL, Appellant, v. Grant SAWYER, as Governor of the State of Nevada, et al., Appellees. No. 17322. United States Court of Appeals Ninth Circuit. March 7, 1962. COPYRIGHT MATERIAL OMITTED William B. Beirne, A. L. Wirin, Fred Okrand, Los Angeles, Cal., W. Albert Stewart, Jr., Las Vegas, Nev., for appellant. Roger D. Foley, Atty. Gen. of Nevada, Bruce R. Thompson, Michael J. Wendell, Sp. Deputy Attys. Gen., for appellees. Before POPE, HAMLEY and KOELSCH, Circuit Judges. HAMLEY, Circuit Judge. 1 John Marshall, having been assertedly ousted from Desert Inn Hotel in Las Vegas, Nevada, brought this action for damages and injunctive relief, invoking the Civil Rights Act, 28 U.S.C.A. § 1343 (1), (3) and (4), and 42 U.S.C.A. §§ 1983 and 1985(3). Named as defendants were the Governor, Gaming Control Board and Gaming Commission of Nevada, the members of the board and commission, D. I. Operating Co., a Nevada corporation which operates the Desert Inn Hotel and five employees of that company. The action was dismissed on the ground that the federal court should abstain and remit plaintiff to his state court remedies. Plaintiff appeals. 2 It is alleged in the…

John Marshall, having been assertedly ousted from Desert Inn Hotel in Las Vegas, Nevada, brought this action for damages and injunctive relief, invoking the Civil Rights Act, 28 U.S.C.A. § 1343 (1), (3) and (4), and 42 U.S.C.A. §§ 1983 and 1985(3). Named as defendants were the Governor, Gaming Control Board and Gaming Commission of Nevada, the members of the board and commission, D. I. Operating Co., a Nevada corporation which operates the Desert Inn Hotel and five employees of that company. The action was dismissed on the ground that the federal court should abstain and remit plaintiff to his state court remedies. Plaintiff appeals.

It is alleged in the complaint, among other things, that the defendant state agencies and officials entered into an agreement and adopted a policy to discriminate against and to bar plaintiff from registering or obtaining food service, sitting in the lounge or foyer, or being in the casino or on the premises of any hotel in Nevada licensed to operate a gambling casino, and to bar him from the state of Nevada as a person designated by them as “undesirable.” It was part of this agreement and policy, plaintiff alleged, that the described objectives…

(concurring).

Notwithstanding I am of the view that the complaint here fails to state a claim, I agree that the case should be remanded for trial and at such trial the facts developed and findings made. In my opinion the issues here are of such vital importance that the principles of sound judicial administration expounded in Kennedy v. Silas Mason Co., 334 U.S. 249, 256 , 68 S.Ct. 1031 , 92 L.Ed. 1347 , 1 and Poller v. Columbia Broadcasting Co., U.S., 82 S.Ct. 486 (Feb. 19, 1962), require that such issues should not be resolved upon a record so limited as this one is. If I were to *648 base a final judgment upon the complaint alone, read in the light of what I know judicially about the State of Nevada, and its laws, regulations and customs relating to its gambling business, I would be obliged to say that plaintiff is entitled to no relief. But I think the validity of my judgment on that matter can best be tested after all the evidence is in.

Plaintiff is not seeking to defend or enforce any of the commonly recognized rights for the protection of which the Fourteenth Amendment was designed. Involved here is not a right to use the highways as in Morf v. Ingels, D.C., (three-judge…