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February 9, 1967

Julius W. HOBSON, individually and on behalf of Jean Marie Hobson and Julius W. Hobson, Jr., et al., Plaintiffs,
Carl F. HANSEN, Superintendent of Schools of the District of Columbia et al., Defendants*

The opinion of the court was delivered by: FAHY

Plaintiffs seek a declaratory judgment and an injunction forbidding the exercise of authority by the members of the Board of Education of the District of Columbia, on the ground that D.C.Code § 31-101 (1961 ed.), under which they were appointed by the Judges of the United States District Court for the District of Columbia, is unconstitutional.

 Section 31-101 in pertinent part provides:

The members of the Board of Education shall be appointed by the United States District Court judges of the District of Columbia * * *.

 Plaintiffs challenge also the manner in which the Board has been performing its functions.

 The Chief Judge of the Circuit, under the authority of 28 U.S.C. § 291(c), designated Circuit Judge J. Skelly Wright to sit as a District Judge and to hear the case. Deeming the constitutional challenge to Section 31-101 not to be frivolous. Judge Wright, pursuant to 28 U.S.C. § 2284, *fn1" requested the Chief Judge of the Circuit to constitute a three-judge District Court to consider that issue. Hobson v. Hansen, 252 F. Supp. 4. The present three-judge court was constituted for that purpose. We convened and heard the motion of plaintiffs for summary judgment and the motion of defendants to dismiss count 1 of the complaint. This is the count which raises the constitutional question as to Section 31-101. Issues to be decided by Judge Wright alone are not discussed in this opinion.


 We note preliminarily the suggestion of defendants that the question as to the constitutionality of Section 31-101 is so insubstantial that a three-judge court was not required to consider it. We disagree for reasons set forth in the opinion of Judge Wright in Hobson v. Hansen, supra.

 We also disagree with defendants' contention that plaintiffs lack standing to question the validity of Section 31-101. Suing in their own behalf and for the classes to which they belong, plaintiffs include pupils in the public schools which are administered by the Board, and parents and guardians of such pupils. *fn2" They are clothed with sufficient interest to challenge the authority of the Board to administer the schools, an authority which is separately alleged, in the counts pending before Judge Wright, to be exercised in a manner which deprives them of equal protection of the laws. In Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663, the Court stated that "the gist of the question of standing" is,

Have the * * * [plaintiffs] alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?

 Plaintiffs are not mere federal taxpayers, as was the plaintiff denied standing in Frothingham v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078. They are closely involved as pupils, or as parents and guardians who have the right to direct the education of children under their control, Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S. Ct. 571, 69 L. Ed. 1070 and the education of children is an important function of state and local governments. Brown v. Board of Education, 347 U.S. 483, 493, 74 S. Ct. 686, 98 L. Ed. 873. Defendants concede plaintiffs' standing to contest the manner in which the Board administers the schools. It is but a short step to standing also to challenge the constitutionality of the basic authority of the Board to do the administering. Unless persons in the position of plaintiffs have standing to do this the issue may escape resolution. This argues for resolving doubts in favor of plaintiffs in such a case; for there is no hard and fast rule which governs standing. As Mr. Justice Frankfurter said of a "case" or "controversy," whether or not standing emerges also depends in good part upon the "expert feel of lawyers." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594, 72 S. Ct. 863, 96 L. Ed. 1153 (concurring opinion). The right to take steps by judicial means not only to have the schools administered by valid methods but also to have them administered by those who may validly do so, pertains to children who under public law attend the schools, and their parents and guardians. The views of the commentators are not uniform, but we think the better view supports our position in the circumstances of this case. Compare Davis, "'Judicial Control of Administrative Action': A Review," 66 Colum.L.Rev. 635, 659-666 (1966) and Jaffe, "Standing To Secure Judicial Review: Public Actions," 74 Harv.L.Rev. 1265, 1310 (1961), with Jaffe, Judicial Control of Administration Action, 459-500 (1965). And see Hart and Wechsler, The Federal Courts and the Federal System 174-75 (1953).


The Congress shall have Power * * * To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States * * *.

 As a consequence of this provision and of Article III of the Constitution *fn3" our District Court *fn4" has a dual character. It shares the judicial power of the United States as a District Court established under Article III. *fn5" But it also has the powers conferred upon it in the exercise by Congress of its plenary legislative power over the District of Columbia. This dual character, with its combination of powers stemming from both Article I and Article III, is described in O'Donoghue v. United States, 289 U.S. 516, 545-546, 53 S. Ct. 740, 748, 77 L. Ed. 1356:

In dealing with the District, Congress possesses the powers which belong to it in respect of territory within a state, and also the powers of a state. Keller v. Potomac Elec. Co., 261 U.S. 428, 442, 443, 43 S. Ct. 445, 67 L. Ed. 731. "In other words," this court there said, "it possesses a dual authority over the District and may clothe the courts of the District not only with the jurisdiction and powers of federal courts in the several States but with such authority as a State may confer on her courts * * *. Subject to the guaranties of personal liberty in the amendments and in the original Constitution, Congress has as much power to vest courts of the District with a variety of jurisdiction and powers as a state legislature has in conferring jurisdiction on its courts. In Prentis v. Atlantic Coast Line Co., supra, [211 U.S. 210, 29 S. Ct. 67, 53 L. Ed. 150] we held that when 'a state Constitution sees fit to unite legislative and judicial powers in a single hand, there is nothing to hinder so far as the Constitution of the United States is concerned.' (211 U.S. at 225, 29 S. Ct. 67, 69, 53 L. Ed. 150, 158); Dreyer v. [People of State of] Illinois, 187 U.S. 71, 83, 84, 23 S. Ct. 28, 47 L. Ed. 79.

 The dissent of Chief Justice Hughes, Mr. Justice Van Devanter and Mr. Justice Cardozo adds strength to the view of the majority concerning the powers Congress may confer on the courts of the District. Their disagreement was with the view that the courts of the District of Columbia were not merely courts established, to quote the dissent, "under the broad authority conferred upon the Congress for the government of the District of Columbia by paragraph 17 of § 8 of article I." 289 U.S. at 552, 53 S. Ct. at 751. They described this as a

power complete in itself and derives nothing from § 1 of Article III. It is a power not less complete, but essentially the same as that which is conferred upon the Congress for the government of territories. * * * It is not a dual power in the sense that it is derived from two sources, that is, both from Article III and also from the constitutional provision for the government of the District, but is dual only in the sense that the latter provision confers an authority so broad that it enables the Congress to invest the courts of the District not only with jurisdiction and powers analogous of those of federal courts within the States but also with jurisdiction and powers analogous to those which States may vest in their own courts.

 289 U.S. 552, 53 S. Ct. at 751.

 While the dissenters considered that if the limitations with respect to tenure and compensation which attached to Article III courts were applicable to our local courts of general jurisdiction this would prevent attaching to the latter powers of an administrative sort, this in no way detracts from their view of the broad powers conferrable by Congress upon our courts *fn6" under Article I. Moreover, the view of the dissenters that Article III courts could not be vested with administrative responsibilities does not indicate that they would hold invalid such appointive power as is vested in the judges by Section 31-101 of our Code, especially in light of the appointive power which may be conferred upon Article III courts under Article II, § 2, cl. 2 of the Constitution, discussed in Part III of this opinion.

 Again, in National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 590-592, 69 S. Ct. 1173, 93 L. Ed. 1556, it is said:

It has long been held that Congress may clothe District of Columbia courts not only with the jurisdiction and powers of federal courts in the several states but with such authority as a state may confer on her courts.
* * *
It is too late to hold that judicial functions incidental to Art. I powers of Congress cannot be conferred on courts existing under Art. III, for it has been done with this Court's approval. O'Donoghue v. United States, 289 U.S. 516, 53 S. Ct. 740, 77 L. Ed. 1356. In that case it was held that, although District of Columbia courts are Art. III courts, they can also exercise judicial power conferred by Congress pursuant to Art. I. The fact that District of Columbia courts, as local courts, can also be given administrative or legislative functions which other Art. III courts cannot exercise, does but emphasize the fact that, although the latter are limited to the exercise of judicial power, it may constitutionally be received from either Art. III or Art. I, and that congressional power over the District, flowing from Art. I, is plenary in every respect.

 The foregoing is from the opinion of Mr. Justice Jackson, who announced the judgment of the Court and was joined in his opinion by Mr. Justice Black and Mr. Justice Burton. While there was no opinion which had the adherence of a majority of the Court, the correctness of O'Donoghue v. United States, supra, is unquestioned by the concurring and dissenting Justices. See 337 U.S. 582, 608-609, 638-640, 69 S. Ct. 1173, 93 L. Ed. 1556 Mr. Justice Rutledge, writing the concurring opinion for himself and Mr. Justice Murphy, could not join in the view that conferment by Article I of plenary powers to legislate for the District enabled Congress to extend to citizens of the District the right to invoke in nonfederal or diversity cases the jurisdiction of District Courts throughout the nation. He said:

I think that the Article III courts in the several states cannot be vested, by virtue of other provisions of the Constitution, with powers specifically ...

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