Certiorari Denied February 24, 1969. See 89 S.Ct. 861.
COFFIN, Circuit Judge.
The appellant, Owen F. Lyons, aspires to be an independent candidate for Congress in the Eighth Congressional District of Massachusetts. Appellant sought to have his name printed on the November general election ballot and, pursuant to Mass.Gen.Laws, c. 53, § 6, he submitted a list of nomination signatures to the Secretary of State of Massachusetts. On July 31, 1968, the Secretary of State informed appellant that he had not procured the required number of signatures, and therefore, his name would not appear on the general election ballot.
Appellant filed a complaint in the district court naming the Secretary of State and the Attorney General of Massachusetts as defendants. Appellant requested
On August 12, 1968 the district court issued a "memorandum" which addressed itself to the "immediate action" being sought — the establishment of a three judge court, held that no substantial federal question was presented, and concluded by denying "The prayer for convening the three-judge court". Two weeks later, on August 28, 1968, one defendant moved to dismiss the complaint as not stating a claim on which relief could be granted and on September 4, 1968 the other defendant filed a similar motion. On the latter date, neither motion having been acted upon, appellant appealed "from the `Memorandum'".
We first consider the threshold question of our jurisdiction to review the district court order. If the order is interlocutory, it is not reviewable in this court and appellant's only recourse is to seek a writ of mandamus in the Supreme Court. Stratton v. St. Louis S. W. Ry., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135 (1930). If the appeal is from a final order this court is compelled to consider the three judge court issue at the outset because if a three judge court should have been impaneled, the single judge was without jurisdiction to consider the merits and the case must be remanded for a three judge court. Gong v. Kirk, 375 F.2d 728 (5th Cir. 1967). On the other hand, if the refusal to convene a three judge court was proper, the single judge had jurisdiction to render a decision on the merits and a review would be proper in this court.
We stumble at the first hurdle. Not only is the "Memorandum" not a judgment "so set forth" in accord with Rule 58, Fed.R.Civ.Proc., but it does not purport to be a dismissal of the action. While the district court left no doubt in anyone's mind that it did not consider the complaint to have merit, its ruling was confined to the "immediate action" requested, the convening of a three judge court. This left as a proper subject for a single judge court the request for declaratory relief, cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154-155, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), which matter was not decided. This is, therefore, not comparable to the situation in Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 n. 2, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962), where the denial of the request for a three judge court effectively operated to throw plaintiff out of court.
Appellant's remedy, rather than jumping the gun in a premature appeal from an interlocutory order, other than those specified in 28 U.S.C. §§ 1291 and 1292, was to have sought a writ of mandamus in the Supreme Court, Stratton v. St. Louis S. W. Ry., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135, or else have asked for a final judgment. We therefore must remand this case to the district court for further action. In so doing we recognize both the apparent foreshadowing of the final action from the unequivocal language of the court's "Memorandum" and the frustration of appellant as he sees the general election date drawing near. We therefore put aside our normal scruples about opining on a matter not
We believe that appellant's claim is completely without merit. The essence of his complaint is that Mass.Gen. Laws, c. 53, § 6 violates the Equal Protection clause of the Fourteenth Amendment because it imposes a heavier burden on independent candidates than on political party candidates
In short, a person wishing to appear as an independent candidate on the final ballot must only submit an additional increment of signatures. A person wishing to appear as a political party's candidate on the final ballot must either win the convention's nomination or submit somewhat fewer signatures than the independent-aspirant and win his party's primary, often a not inconsiderable undertaking. Such a difference in treatment as that complained of in this case — the only point on which we express an opinion — is that sort of "minor difference in the application of laws to different groups" which the Supreme Court recognizes as permitted by the Equal Protection Clause. Williams v. Rhodes, 392 U.S. ___, 89 S.Ct. 5, 21 L.Ed.2d 24 (decided October 15, 1968).
Appeal dismissed for lack of jurisdiction.
In the Eighth District (appellant's district) 4,373 signatures were required and appellant obtained only 3,685 signatures.