# Kesler v. Department of Public Safety of Utah/Dissent Warren

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stewart
* Dissenting Opinions Warren Black
United States Supreme Court
369 U.S. 153
Kesler v. Department of Public Safety of Utah
Argued: Oct. 10, 1961. --- Decided: March 26, 1962
Mr. Chief Justice WARREN, dissenting.
We are confronted here with a threshold question of jurisdiction which should, in my opinion, be dispositive of the case. The question is whether a three-judge court was properly convened for the trial of this case. Although the issue was not considered by the courts below and had not been raised by the parties here, it is our duty to take independent notice of such matters and to vacate and remand any decree entered by an improperly constituted court. I cannot agree with the test formulated by the opinion of the Court because I believe that for both lower federal courts and for ourselves, it will raise more problems than it will solve, and because I do not see any basis for it either in the statute or in our prior decisions.
When to convene a three-judge court has always been a troublesome problem of federal jurisdiction and a review of the cases involving that question illustrates the difficulties the lower federal courts have had in applying the principles formulated by this Court. However, one rule has been clear: where a state statute is attacked as violating directly some provision of the Federal Constitution, a three-judge court must be convened. Equally clear has been the principle that where the state statute is alleged to be inoperative because of the presence of a federal statute which the Supremacy Clause of the Constitution declares pre-emptive of the state law, a single judge may dispose of the case. That, I submit, is precisely the situation here. A case essentially similar to ours is Case v. Bowles, 327 U.S. 92, 66 S.Ct. 438, 90 L.Ed. 552. There the State had enacted a provision regulating the minimum price at which certain state-owned land had to be sold when disposed of by the State. When the State attempted to sell timber located on such land at a price permitted by the state enactment, the sale was sought to be enjoined on the ground that the price required by the state law exceeded the limits of the Federal Emergency Price Control Act and was therefore invalid under the Supremacy Clause. To the State's contention that the complaint stated a cause of action required to be heard by a three-judge court, this Court, speaking through Mr. Justice Black, stated:
'* * * here the complaint did not challenge the constitutionality of the State statute but alleged merely that its enforcement would violate the Emergency Price Control Act. Consequently a three-judge court is not required. * * *'
So in the case before us, 'the complaint did not challenge the constitutionality of the * * * (Utah Financial Responsibility Act) but alleged that its enforcement would violate the * * * (Bankruptcy Act). Consequently, a three-judge court * * * (was) not required.' However, the Court's opinion adds an additional distinction. Its reasoning is that if there is a preliminary question of statutory construction, either of the state or federal statute alleged to be in conflict, only one judge is required. On the other hand, if the court is able to go 'directly' to the constitutional question (i.e., whether the state statute must fall under the Supremacy Clause), three judges are required. I do not believe that there was any greater need for interpretation of the statute or of congressional purpose in Bowles than there is in determining the scope of the Bankruptcy Act in providing for the discharge of debts in the case before us. I can find no real distinction between the two cases and do not believe that one can be found in the statutes or any place else. It would, in fact, be difficult to conceive of any case which would not call for an initial interpretation of the legislation or an inquiry into its purpose or policy before a court could determine if the state and federal statutes are in conflict. The instant case is no exception, and, in my opinion, the Court's opinion refutes the very test which it establishes. The difference of opinion on the merits in this case among the members of the Court stems from the meaning and purpose of § 17 of the Bankruptcy Act, and it is evident that the Court's holding in Reitz v. Mealey, referred to by the Court in the instant case, considered the purposes of both the state legislation and the federal bankruptcy scheme. Indeed, the effect of the discharge in bankruptcy affords considerable latitude for construction, as noted by this and other courts on numerous occasions.
Moreover, I believe that it is tacit in the Supremacy Clause itself that a preliminary inquiry must always be made into the policy behind the legislation alleged to be in conflict before a final analysis of whether the federal legislation is pre-emptive can be made. But perhaps the most practical objection to the test formulated by the Court is that it is plainly unworkable. Application of that test by lower federal courts will, in my opinion, create additional confusion to an already difficult area of federal jurisdiction. Because I think that we should follow our past decisions, and not impose technical and unworkable distinctions upon them, I would dismiss this case for lack of jurisdiction in this Court. However, because the Court has held otherwise and has decided the merits of the alleged conflict, I believe it is my duty also to reach the substantive questions.
On the merits, I find myself in agreement with most of Mr. Justice FRANKFURTER'S opinion for the Court. State drivers' financial-responsibility laws intended to discourage careless driving and to promote safety in automobile traffic for the protection of its citizens are essential to the State's well-being and wide latitude should be allowed in the formulation of such laws. Accordingly, I am reluctant to say that a State has exceeded its powers in this area. I cannot, however, agree with the Court's treatment of that portion of the Utah Act which gives to a creditor the discretion of determining if and when driving privileges may be restored by the State to a person whose license has been revoked due to his failure to satisfy a judgment incurred as a result of a previous automobile accident.
The essential inquiry in a case such as this is not only whether the State has acted in a field in which it has a legitimate interest to achieve goals inherent in its police power. Rather, our task is also to ascertain whether the provisions of the state act are compatible with the policy expressed in the federal legislation with which the state law is alleged to be in conflict. If there is no escape from a finding of incompatibility, the Supremacy Clause of the United States Constitution demands that the conflicting state law and policy must yield to the federal statute. This demand is made no less apparent by a determination that the state statute has been enacted pursuant to an otherwise valid exercise of state power.
In Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21, this Court upheld the New York variant of this legislation, according to the Court's opinion in the instant case, '(b)ecause the statute was not designed to aid collection of debts but to enforce a policy against irresponsible driving, and because this policy would be frustrated if negligent drivers could avoid the statute by 'the simple expedient of voluntary bankruptcy' * * *.' Here, however, the Court decides a question that was deliberately not canvassed in Reitz, namely, the validity of the provision authorizing creditor control over restoration of the license.
In my view, the reasons expressed for upholding the New York legislation in Reitz do not apply to this authorization. The State has a legitimate interest in requiring proof of financial responsibility from drivers who have not responded in damages for an accident; and inherent in that interest is the right to demand as a requisite to restoration of driving privileges, that all prior judgments for automobile accidents be paid. To this extent the State advances an interest independent of the purposes of the bankruptcy laws; the interests of the federal and state governments are compatible and hence no conflict with the Federal Act exists. However, where the State relinquishes its right to demand that prior judgments be paid, and in its place authorizes the creditor, through giving or withholding his consent to determine whether the judgment debtor may be restored to his driving privileges, the purposes of the financial-responsibility laws are no longer being served. Instead of the legitimate determination to keep all negligent financially irresponsible drivers off the highways, the State is, ostensibly through its police power, giving the creditor a powerful collection device for recovery of a discharged debt. The emphasis has been shifted to an entirely different purpose and, in my opinion, this change is crucial. The effect of the law is to authorize a private individual, for his own financial interest, to determine whether and when a bankrupt may drive on the State's highways. In departing from its legitimate interest in promoting highway safety and thus substituting the interests of individual creditors, the State brings its law into direct conflict with the policy of the federal statute which is designed to relieve bankrupt debtors from their prior financial obligations. In these circumstances I believe it is our duty to declare that portion of the state law invalid under the Supremacy Clause of the United States Constitution.
This does not mean that I would strike the entire statute; the Utah Act incorporates a separability clause which has never been interpreted by the Supreme Court of Utah. How it would view this situation cannot be foretold, and it is not within our province to undertake to do so. At all events, no great burden would be placed on the State. All it need do is to assume in its own way its responsibilities for determining which drivers should be entrusted to use its highways rather than to delegate that power to a private judgment creditor whose debtor has been discharged of his debt by federal law.
For the reasons stated, I must dissent.

## Notes

* ↑ Pursuant to 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, providing for a three-judge court where an injunction is sought against the enforcement of a state statute upon the ground of its alleged unconstitutionality.
* ↑ Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U.S. 386, 54 S.Ct. 372, 78 L.Ed. 1318; Gully v. Interstate Gas Co., 292 U.S. 16, 54 S.Ct. 565, 78 L.Ed. 1088. Direct appeal from a three-judge court is governed by 28 U.S.C. § 2253, 28 U.S.C.A. § 1253.
* ↑ See the cases collected in Hart and Wechsler, The Federal Courts and the Federal System, 843 et seq. See also Ann., Three-Judge Court, 4 L.Ed.2d 1931 et seq.
* ↑ Query v. United States, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616; Stratton v. St. Louis Southwestern R. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 35; Ex parte Northern Pac. R. Co., 280 U.S. 142, 50 S.Ct. 70, 74 L.Ed. 233.
* ↑ Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (by implication); Case v. Bowles, 327 U.S. 92, 66 S.Ct. 438, 90 L.Ed. 552; Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036; Lemke v. Farmers Grain Co. of Embden, N.D., 258 U.S. 50, 42 S.Ct. 244, 66 L.Ed. 458. The lower federal courts have also been unanimous in so holding. E.g., Bell v. Waterfront Commission, D.C., 279 F.2d 853; Penagaricano v. Allen Corp., 1 Cir., 267 F.2d 550; Cloverleaf Butter Co. v. Patterson, 5 Cir., 116 F.2d 227, rev'd on other grounds, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754; Pennsylvania Greyhound Lines, Inc., v. Board of Public Utility Comm'rs, D.C., 107 F.Supp. 521.
* ↑ 327 U.S., at 97, 66 S.Ct. at 441.
* ↑ The sole determination for convening a three-judge court is whether the state statute is being attacked on the grounds of its unconstitutionality. 28 U.S.C. § 2281, 28 U.S.C.A. § 2281. The statute makes no distinction based on the absence of preliminary questions of interpretation. Moreover, this Court has, in the past, attempted to construe this statute rigidly because of our reluctance to enlarge our own mandatory duties of review and because of the serious drain that 'the requirement of three judges * * * entails * * * upon the federal judicial system * * *.' Phillips v. United States, 312 U.S. 246, 250, 61 S.Ct. 480, 483, 85 L.Ed. 800.
* ↑ See note 13, infra.
* ↑ A great portion of the Court's opinion is devoted to a review of the purpose and intent of state-highway financial-responsibility laws. In addition, the Court considers, as it must, the scope of § 17 of the Bankruptcy Act. See ante, 369 U.S., pp. 169-171, 82 S.Ct., pp. 817-818. The Court concludes that there are 'overlapping interests' between the two pieces of legislation that need resolution. See ante, 369 U.S., p. 171, 82 S.Ct., p. 818.
* ↑ As amended, 52 Stat. 851, 11 U.S.C. § 35, 11 U.S.C.A. § 35. This Section provides in part, 'A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part * * *.'
* ↑ 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21.
* ↑ See Zavelo v. Reeves, 227 U.S. 625, 33 S.Ct. 365, 57 L.Ed. 676; Spalding v. New York ex rel. Backus, 4 How. 21, 11 L.Ed. 858 (1846) (decided under an earlier bankruptcy law); Parker v. United States, 1 Cir., 153 F.2d 66, 163 A.L.R. 379; In re Koronsky, 2 Cir., 170 F. 719; cf. Crawford v. Burke, 195 U.S. 176, 25 S.Ct. 9, 49 L.Ed. 147; Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754.
* ↑ The application of the Supremacy Clause is increasingly becoming a matter of statutory interpretation-a determination of whether state regulation can be reconciled with the language and policy of federal legislation. See, e.g., United States v. Burnison, 339 U.S. 87, 70 S.Ct. 503, 94 L.Ed. 675; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447; Southern Pacific Co. v. State of Arizona, etc., 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915. Cf. International Union etc., Auto Workers v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651. Thus, the answers to questions put under the Supremacy Clause must largely be derived from the statute and the policy behind the federal legislation. See note 18, infra.
* ↑ See note 5, supra.
* ↑ 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. See Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800.
* ↑ Thus, I believe that without the 'subject to' clause of Utah Code Ann., 1953, § 41-12-15, referring to the creditor-control provision of § 41-12-14(b), that Section would be valid.
* ↑ Certainly the 'complicated demands of federalism' cannot prevent us from fulfilling this duty. In fact, the Constitution expressly provides that in this area of federal-state relations these complicated demands shall play no part. U.S.Const., Art. VI.
* ↑ Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176, 63 S.Ct. 172, 87 L.Ed. 165; Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782.
* ↑ See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230-231, 67 S.Ct. 1146, 91 L.Ed. 1447; Case v. Bowles, 327 U.S. 92, 101-102, 66 S.Ct. 438, 90 L.Ed. 552; Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 610-611, 47 S.Ct. 207, 71 L.Ed. 432. See also Munn v. State of Illinois, 94 U.S. 113, 24 L.Ed. 77. Cf. Southern Pacific Co. v. State of Arizona ex rel. Sullivan, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915.
* ↑ The creditor controls in the revocation and restoration provisions are completely distinguishable, and I find no fault with that portion of the Act permitting the creditor to give notice of default in payment so as to initiate the revocation procedure. As to this strictly 'procedural' provision, Judge Hand's pronouncement in the lower court's opinion in Reitz v. Mealey, 34 F.Supp. 532 (D.C.N.D.N.Y.1940), is dispositive. However, for the reasons next stated in the text, the creditor control over restoration does not serve a procedural purpose; it is directly a matter of substance and, as such, it changes the whole purpose of the legislation.
* ↑ See note 16, supra. See also, e.g., Cal. Vehicle Code, 1959, Div. 7, § 16371.
* ↑ This aid is being given solely for the creditor's benefit. The State is in effect saying that it does not have an interest in preventing drivers who have been unable to meet their financial obligations from using the highways-as far as the State is concerned some may and others may not. The choice is delegated to the creditors. Hence, creditor X may have two outstanding judgments owing from two different individuals who have caused him damage in a highway accident. Although the State unquestionably has an equal interest in either allowing or disallowing use of the highway by these two debtors, X has the sole discretion to say to the State 'Debtor A may have his license back, but debtor B may not.'
* ↑ Utah Code Ann., 1953, § 41-12-40.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse