Affirmed on appeal from D.C. Ariz. Reported below: 329 F.Supp. 907.
Affirmed on appeal from D.C. Ariz.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST join, dissenting.
This is a direct appeal from the order of a three-judge District Court, convened pursuant to 28 U. S. C. § 2281,*fn1 denying appellants' prayer for injunctive relief. Jurisdiction over the appeal is based upon 28 U. S. C. § 1253.*fn2 If the three-judge court were improperly convened, however, the appeal lies not to this Court, but to the Court of Appeals. Moody v. Flowers, 387 U.S. 97. My analysis
leads me to conclude that a three-judge court was not required, so I would dismiss this appeal.
The controversy involves the efforts of appellant Native American Church of Navajoland, Inc., to obtain a certificate of incorporation from the Arizona Corporation Commission. According to Arizona law, "Any number of persons may associate themselves together and become incorporated for the transaction of any lawful business." Ariz. Rev. Stat. Ann. § 10-121 (emphasis supplied). The Commission refused to issue the certificate for the reason that it believed appellant Church's proposed Articles of Incorporation revealed that the organization had an unlawful purpose for incorporating, that being "to work for unity in the use of Peyote, as a Sacrament and as a means of divine healing through its Divine Power." It appears to be conceded that the Commission's decision was prompted by the fact that the use, possession, and sale of peyote is made a misdemeanor by Ariz. Rev. Stat. Ann. § 36-1061, and because peyote is subject to regulation as a "dangerous drug" under Ariz. Rev. Stat. Ann. §§ 32-1964 (A)(7), 32-1965, and 32-1975. Appellants then sought declaratory and injunctive relief from the District Court.
Two injunctions were sought. The first asked that the Corporation Commission be enjoined from refusing to grant appellants a certificate of incorporation "for failure to comply with" Ariz. Rev. Stat. Ann. §§ 10-121 and 36-1061. Insofar as this prayer asked to enjoin Commission action taken under color of Ariz. Rev. Stat. Ann. § 10-121, however, it was insufficient to require a three-judge court. Nowhere in their complaint did appellants attack the constitutionality of § 10-121, either on its face or as applied. Indeed, they concede its constitutionality before this Court, stating explicitly that it is "neutral in scope and application." (Reply Brief for Appellants 4.) But, as has been long held, an action to enjoin
the allegedly unconstitutional result reached by the Commission in the exercise of its authority under § 10-121 would not sustain the jurisdiction of a three-judge court. Phillips v. United States, 312 U.S. 246; Ex parte Bransford, 310 U.S. 354; Ex parte Hobbs, 280 U.S. 168.
"It is necessary to distinguish between a petition for injunction on the ground of the unconstitutionality of a statute as applied, which requires a three-judge court, and a petition which seeks an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional. The latter petition does not require a three-judge court. In such a case the attack is aimed at an allegedly erroneous administrative action. . . ." Ex parte Bransford, supra, at 361.*fn3
Moreover, a three-judge court was not required to hear appellants' challenge to the Commission's alleged "enforcement" of the Arizona drug law which was attacked as unconstitutional. The Commission is not authorized by state law to enforce criminal statutes. Its authority extends only to the enforcement of the negative implications of Ariz. Rev. Stat. Ann. § 10-121. Its opinion that the use of peyote in religious sacraments is an unlawful purpose for incorporation does not reflect an official position on the part of those state officers who are charged with law enforcement that members of the Native American Church can be arrested for observing the tenets of their religion. Section 2281 requires that ...