Richard D. Zelechower, M.D. v. Evelle J. Younger, Etc.

424 F.2d 1256 Richard D. ZELECHOWER, M.D., et al., Plaintiffs-Appellants, v. Evelle J. YOUNGER, etc., et al., Defendants-Appellees. No. 23331. United States Court of Appeals, Ninth Circuit. January 28, 1970. As Modified February 27, 1970. Rehearing Denied March 11, 1970. Peter D. Bogart (argued), Los Angeles, Cal., for plaintiffs-appellants. William V. Ballough (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., Leonard D. Black (argued), Deputy County Counsel, Lawrence L. Hoffman, Deputy County Counsel, Harold W. Kennedy, County Counsel, Los Angeles, Cal., for defendants-appellees. Before BARNES, KOELSCH and KILKENNY, Circuit Judges. BARNES, Circuit Judge. 1 Appellants sought damages, declaratory and injunctive relief in the district court alleging the unconstitutionality of several California statutes governing grand jury selection and violation of the Civil Rights Act. ( 42 U.S.C. §§ 1981 , 1983.) Preliminary injunctive relief was denied and the action was dismissed as presenting no substantial federal question. Plaintiffs brought this appeal under 28 U.S.C. § 1391 assigning numerous errors to the disposition below. 2 Appellants Peter D. and June Bogart…

Appellants sought damages, declaratory and injunctive relief in the district court alleging the unconstitutionality of several California statutes governing grand jury selection and violation of the Civil Rights Act. ( 42 U.S.C. §§ 1981 , 1983.) Preliminary injunctive relief was denied and the action was dismissed as presenting no substantial federal question. Plaintiffs brought this appeal under 28 U.S.C. § 1391 assigning numerous errors to the disposition below.

Appellants Peter D. and June Bogart were indicted in February, 1964, on charges of grand theft. Appellants Richard D. Zelechower, M.D. and Theodore and Susan Cohen were similarly indicted in September of 1966.

The Bogarts were convicted on some of the charges 2 contained in their indictment on July 25, 1965. The Cohens and Zelechowers were similarly convicted on September 28, 1967. On October 5, 1967, appellants joined in this suit in an effort to restrain further prosecution under some of the counts of the 1964 and 1966 indictments that are still outstanding. They also sought other relief, which is described in greater detail, post.

Appellants’ pleading requested several forms of relief. First, they sought…

(concurring specially).

I do not share the court’s view that the Zelechowers’ pleading tenders no substantial federal question. As noted in *1260 the opinion, the attack centers upon Section 897 of the California Penal Code and a Local Rule (Rule 29) promulgated by the Superior Court of Los Angeles County, California. Both the statute and the rule regulate the selection of persons for grand jury service. The statute operates to exclude from eligibility persons “who are not exempt from serving. * * * ” Further statutes (Cal.P.C. 894 and CCP 200) specifically designate the persons so exempted. So far as pertinent to this case they are:

Local Rule 29 (although ambiguous) contains a broader exclusion than the statute and makes ineligible for grand jury service “(b) Spouses of judges and Commissioners of the Superior Court and the Municipal Court and attorneys known to be in active practice. * * * ”

The Zelechowers’ theory, urged in their complaint, is that the quoted provisions appearing in both the statute and the rule contravene the Fourteenth Amendment to the Federal Constitution because the classifications are arbitrary. This Court, on the supposed authority of Rawlins v.…